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[2026] NSWCA 190
respondent. Leave to appeal refused with costs; the presiding judge’s recusal application was refused.
The Court of Appeal refused permission to challenge a temporary order stopping Mr Jaworski's new proceedings until he paid costs from earlier proceedings. It accepted that the new proceedings sought different forms of relief, but considered that they were based on substantially the same underlying conduct and followed an earlier opportunity to establish a prima facie basis for the allegations. It also rejected the contention that the presiding judge should step aside because of former work relationships involving court researchers and respondent's counsel. The judgment decides only the leave and recusal applications, not the truth of the underlying allegations.
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2,295 words · generated 08/10/2026
Gerald Jaworski applied to the NSW Court of Appeal for leave to appeal an interlocutory order of Brereton J. That order stayed his fresh proceedings against Chartered Accountants Australia and New Zealand (CA ANZ) until he paid costs ordered against him in earlier proceedings. The amounts stated in the judgment were $101,100 for the costs ordered by Black J and $13,600 for costs ordered by Stern JA. [1], [15]
2 cited instruments linked from this judgment.
The earlier proceedings began in June 2024. Jaworski sought permission to bring claims derivatively, in effect seeking to pursue claims on CA ANZ's behalf concerning governance and other conduct. The listed matters included the handling of member requisitions at CA ANZ's 2020 annual general meeting, changes to by-laws, director remuneration, financial reporting, and CA ANZ's refusal to arrange an impartial review. [8]-[9] Black J dismissed the amended summons and ordered costs. Jaworski's attempted appeal was dismissed as incompetent because leave was required, and the High Court later refused special leave. [10]-[12]
Jaworski had commenced fresh proceedings in June 2025, seeking declaratory relief in his own name based broadly on the same matters. [13] CA ANZ applied for a stay until the earlier costs were paid, relying on the Court's inherent jurisdiction, s 67 of the Civil Procedure Act 2005 (NSW), and r 12.10 of the Uniform Civil Procedure Rules 2005 (NSW). It also sought security for costs in the alternative. [15] The primary judge granted the stay and did not need to decide the alternative security application. [25]-[27]
The Court of Appeal refused leave to appeal with costs. It also considered a recusal application made shortly before delivery of judgment. Jaworski relied on prior working relationships between the presiding judge and two former court researchers, one of whom was respondent's junior counsel and the other the son of CA ANZ's General Counsel. The Court rejected that application and delivered its reasons. [50]-[67]
The Court began with the threshold for leave. It cited authorities stating that leave is appropriate only where the proposed appeal involves a question of principle, a question of public importance, or an injustice that is reasonably clear and goes beyond what is merely arguable. [5] It also emphasised appellate restraint when reviewing interlocutory decisions about practice and procedure. An applicant must show error of principle or clear injustice. [6]
The proposed notice of appeal contained 45 grounds, but the Court focused on whether any argument established the required threshold. It held that Mr Jaworski had not demonstrated error of the kind described in House v The King, nor a question of principle, public importance, or reasonably clear injustice. [38]-[39] The Court observed that the primary judge had not determined the substance of Jaworski's claims. The issue before the primary judge was whether the fresh proceedings should continue while the earlier costs remained unpaid. [37], [39]
The central factual connection was that both sets of proceedings were premised on substantially the same underlying conduct. The Court acknowledged the difference in legal form: the earlier proceedings sought to pursue derivative claims for CA ANZ's benefit, while the fresh proceedings sought relief against CA ANZ in Jaworski's own name. [20] But it considered that distinction did not answer the abuse-of-process concern. In its view, the primary judge was entitled to focus on the conduct said to justify the requested relief. [40], [47]
The Court also addressed the earlier opportunity to establish a prima facie basis for the allegations. It clarified that the allegations themselves had not been tried or finally determined. However, Jaworski had previously had the opportunity to establish a prima facie case relevant to the derivative leave he sought, and had failed to do so. The Court regarded that distinction as important: the prior outcome did not finally establish that the allegations were false, but it did form part of the context for assessing whether it was an abuse to pursue substantially the same contentions in fresh proceedings while costs remained unpaid. [22]-[23], [46]
The Court rejected the contention that the primary judge had ignored impecuniosity. It found that the primary judge knew of the asserted inability to pay and had considered whether the stay might stifle the proceedings. The primary judge had reasoned that the concern was diminished because Jaworski had already had an opportunity to advance the allegations and had failed to establish a prima facie basis. [23]-[24], [42] The Court found no error or bias in the primary judge's treatment of that matter. [42]
Nor did the Court accept that the alleged conflict involving CA ANZ's controlling officers established error warranting leave. It said the primary judge had considered the issue and that disagreement with the discretionary conclusion did not itself establish error. [26], [44] The Court also rejected the contention that the costs orders could be treated as illegitimate in this appeal. The costs determinations were not the subject of the proposed appeal, and the primary judge was entitled to proceed on the basis that the orders had been entered and remained binding. [43], [45]
The judgment applies existing principles rather than announcing a new general test. Before this decision, the NSW Court of Appeal authorities cited in it already required an applicant seeking leave from an interlocutory decision to demonstrate a question of principle, public importance, or reasonably clear injustice. The judgment draws on Cheng, Carolan, Clarke and PPK Willoughby for that threshold, and on Mohareb and Lepcanfin for the restraint exercised in reviewing procedural decisions. [5]-[6]
For abuse of process, the judgment relies on CGU Insurance Ltd v Watson. As quoted in the reasons, that case recognises the Court's inherent jurisdiction to prevent abuse and states that bringing a second proceeding in the same cause without paying costs of the first may ordinarily justify a stay until payment. [19] The present Court did not turn this into a rule that any unpaid costs automatically stop later proceedings. Its reasoning connected non-payment with the similarity of the underlying conduct, the earlier opportunity to advance the allegations, and the procedural history. [20]-[22], [47]
The Court did not require the fresh proceeding to have precisely the same formal cause of action as the earlier proceeding. It accepted that declaratory relief is a remedy rather than a cause of action in itself, but treated the underlying conduct as the important point on these facts. [40], [47] Its decision therefore illustrates a substantive comparison of the proceedings, without purporting to formulate an exhaustive test for when proceedings are in the same cause.
For apprehended bias, the judgment applies Ebner and the three-step formulation cited from Director of Public Prosecutions (Vic) v Smith. The person alleging bias must identify the relevant factor, explain the logical connection to a feared departure from merits-based decision-making, and show that the apprehension is reasonable from the perspective of a fair-minded lay observer. [41] The recusal discussion applies the same test to former professional relationships involving judges and court researchers. [53]-[64]
The judgment does not state that the earlier cases have been displaced, or that a new doctrine has replaced them. It applies those authorities to the particular procedural history and relationships before the Court.
At [5], the Court says leave is appropriate only where there is “an injustice which is reasonably clear in the sense of going beyond what is merely arguable.” In plain English, it was not enough for Jaworski to identify points that could be debated. The proposed appeal had to meet a demanding threshold appropriate to leave.
At [19], the judgment reproduces CGU Insurance v Watson's recognition that the Court may stay a second proceeding in the same cause until the costs of the first are paid. This explains the source of the primary judge's power, but the Court's application also depended on the relationship between the proceedings and the other circumstances described in its reasons. [20]-[22]
At [41], the Court explains that “a complaint about reasoning or result is not a proper foundation for an allegation of bias.” In plain English, a party's view that a judge misunderstood the facts, gave insufficient weight to an argument, or reached the wrong conclusion does not, by itself, show that the judge might not decide the matter impartially. The separate Ebner steps must be addressed.
At [46], the Court distinguishes between an opportunity to advance a prima facie case and a final determination of the truth of the allegations. It expressly recognises that the allegations themselves had not been heard or determined. The point was narrower: Jaworski had previously had an opportunity to establish a prima facie basis for them in the context of seeking derivative leave.
At [47], the Court identifies the “same underlying conduct” as the significant connection between the two sets of proceedings. In plain English, changing the form of the relief or the capacity in which a person sues may not, by itself, remove an abuse-of-process concern if the later case is built on substantially the same factual complaints.
At [63], the Court explains why former service as a court researcher did not reasonably support the claimed apprehension of bias. It considered that researchers commonly go on to legal careers, and may later appear or instruct in cases before judges with whom they worked. The judgment does not say that every past professional relationship is irrelevant; its conclusion is tied to the relationships and circumstances described in this case.
The judgment is most directly relevant to an application for leave to appeal an interlocutory procedural order where the applicant must identify a qualifying issue or a reasonably clear injustice, rather than merely arguable disagreement. [5]-[7], [38]-[39]
Its abuse-of-process reasoning may be relevant where a party brings fresh proceedings based on substantially the same underlying conduct as earlier proceedings, after having had an opportunity to advance the allegations, while costs orders from the earlier proceedings remain unpaid. [20]-[22], [45]-[49] The decision does not establish that every later proceeding involving similar facts must be stayed. It relies on the particular combination of the earlier procedural opportunity, similarity of the conduct, unpaid costs, and the primary judge's assessment of abuse.
The case also bears on situations in which a party argues that a judge is biased because the judge's reasoning was adverse, because the judge gave insufficient weight to a submission, or because of a prior professional relationship. The judgment requires more than dissatisfaction with the result: the alleged factor must be connected logically to a feared departure from deciding the case on its merits, and that apprehension must be reasonable to a fair-minded lay observer. [41], [53]-[64]
The recusal discussion concerned former court researchers, including a former researcher who appeared as junior counsel and a former Court of Appeal researcher who was related to the respondent's General Counsel. The Court treated those relationships as too remote on the facts presented. [55]-[64] A different relationship, a different role, or a more direct connection to an issue would need its own assessment under the stated test. The judgment does not decide those hypothetical cases.
The supplied judgment does not describe any later court considering or applying Jaworski v Chartered Accountants Australia and New Zealand [2026] NSWCA 190. Because the decision itself is dated 11 September 2026, this judgment text provides no account of subsequent treatment. No conclusion about whether later courts have followed, distinguished, or questioned it can be grounded in the supplied material.
The Court does, however, apply and discuss earlier authorities. It relies on Cheng, Carolan, Clarke and PPK Willoughby for the leave threshold; Mohareb and Lepcanfin for appellate restraint; CGU Insurance v Watson for abuse of process and successive proceedings; House v The King for discretionary error; and Ebner, DPP v Smith, QYFM and Kostov in addressing apprehended bias and recusal. [5]-[7], [19], [38], [41], [60]-[63] Those are the authorities' roles in this judgment, not evidence of how later courts treated the 2026 decision.
The judgment does not set out a comprehensive test for when later proceedings are in the “same cause” for purposes of a stay pending payment of earlier costs. It records that the primary judge found it unnecessary to engage in close analysis of the phrase, and the Court of Appeal upheld the result by focusing on the substantially same underlying conduct and the case's procedural history. [19]-[22], [47] The outer limits of that reasoning are not determined here.
The judgment also does not decide the merits of Jaworski's underlying allegations. The Court expressly noted that they had not been heard or finally determined, while confirming that the earlier derivative proceeding had afforded an opportunity to attempt to establish a prima facie basis. [46] Nor did it decide the alternative security-for-costs application, which the primary judge considered unnecessary to reach after granting the stay. [24], [27]
The Court's treatment of impecuniosity is confined to the circumstances before it. It held that the primary judge had considered the asserted inability to pay and the possible stifling effect, and found no appellate error. [23]-[24], [42] It did not purport to state that impecuniosity is irrelevant to every application for a stay pending payment of earlier costs.
Finally, the recusal decision concerns the relationships and submissions described in the reasons. The judgment does not determine how a more direct connection between a judge and a party, witness, or disputed issue would be assessed. Its operative guidance remains the Ebner framework, applied to the particular former researcher relationships in this case. [53]-[64]
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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 [2026] NSWCA 190
Hearing dates: 31 August 2026 (on the papers); 9 September 2026
Date of orders: 11 September 2026
Decision date: 11 September 2026
Before: Ward P; Harrison AJA
Decision: 1. Refuse leave to appeal with costs.
Catchwords: APPEALS — application for leave to appeal — where proceedings stayed until payment of costs of earlier proceedings raising same claims of wrongdoing — where primary judge held it was an abuse of process to pursue current proceedings for so long as costs orders remained unsatisfied — no issue of principle, question of public importance or reasonably clear injustice identified — leave refused
COURTS AND JUDGES — bias — application for disqualification of the presiding judge for apprehended bias — where junior counsel and the son of the General Counsel of the respondent had previously worked as researchers at the Court with the presiding judge — whether reasonable apprehension of bias by reason of past professional relationship — application dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), s 67
Uniform Civil Procedure Rules 2005 (NSW), rr 12.10, 42.21
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69
CGU Insurance Ltd v Watson [2007] NSWCA 301
Cheng v Motor Yacht Sales Australia Pty Ltd (t/as The Boutique Boat Company) (2022) 108 NSWLR 342; [2022] NSWCA 118
Clarke v State of New South Wales [2015] NSWCA 27
Director of Public Prosecutions (Vic) v Smith [2024] HCA 32; (2024) 98 ALJR 1163
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gaynor v Local Court of New South Wales [2019] NSWSC 516
GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32
Graham v Sutton, Carden & Co [1897] 2 Ch 367
House v The King (1936) 55 CLR 499; [1936] HCA 40
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 (No 4) [2025] NSWSC 457
Jaworski v Chartered Accountants Australia and New Zealand (No 5) [2025] NSWSC 590
Jaworski v Chartered Accountants Australia and New Zealand [2024] NSWSC 1052
Jaworski v Chartered Accountants Australia and New Zealand [2025] NSWCA 177
Jaworski v Chartered Accountants Australia and New Zealand [2025] HCADisp 247
Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94
Lepcanfin Pty Ltd v Lepfin Pty Ltd (2020) 102 NSWLR 627; [2020] NSWCA 155
Mohareb v State of New South Wales [2023] NSWCA 289
Oates v Consolidated Capital Services Ltd (2009) 76 NSWLR 69; [2009] NSWCA 183
Oates v Consolidated Capital Services Ltd [2008] NSWSC 464; (2008) 218 FLR 73
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15
Raybos v Tectran Pty Ltd (1986) 6 NSWLR 272
Zey v State of New South Wales [2026] NSWCA 134
Category: Procedural rulings
Parties: Gerald Jaworski (Applicant)
Chartered Accountants Australia and New Zealand (Respondent)
Representation: Counsel:
G Jaworski (Applicant) (self represented)
JC Giles SC with SD Puttick (Respondent)
Solicitors:
Maddocks (Respondent)
File Number(s): 2026/00149960
Publication restriction: Nil
THE COURT: The applicant (Mr Jaworski) seeks leave to appeal from interlocutory orders made by Brereton J (the primary judge) in the Equity Division on 16 March 2026, staying proceedings commenced by Mr Jaworski against the respondent to this application (Chartered Accountants Australia and New Zealand, to which we will refer as CA ANZ) until Mr Jaworski has paid costs ordered against him (in fixed sums) by Black J and Stern JA, respectively, in earlier proceedings brought against CA ANZ.
By his summons filed 16 June 2026, Mr Jaworski also seeks other relief, including a declaration that the stay motion before the primary judge was improperly brought to the Court (prayer 4) and orders relating to the conduct of the proceedings by CA ANZ (prayers 5 and 6) and the costs of the proceedings at first instance and on appeal (prayer 7).
Mr Jaworski’s draft notice of appeal encompasses some 45 grounds of appeal. It is structured as comprising some “general grounds” (grounds 1-8), followed by grounds “relating to the part of the case dealing with alleged conflict of interest (ie a threshold issue)” (grounds 9-20) and grounds relating to the decision to stay the proceedings (grounds 21-42). The grounds of appeal then include a ground alleging procedural unfairness (“[t]o the extent that any grounds were not, but should have been, put forward here or in the earlier proceedings”) through the primary judge “not providing appropriate assistance to a litigant-in-person and/or denying me an opportunity to be heard on important issues” (ground 43) and two purported grounds which appear to be submissions, under the heading “[o]verall conclusions” (grounds 44-45). The grounds also include apparent allegations of bias on the part of the primary judge (see grounds 35-36).
The application for leave to appeal was listed to be dealt with on the papers. Mr Jaworski, who has represented himself on this application, prepared lengthy written submissions as well as submissions in reply. We have considered those submissions together with the submissions of CA ANZ. These are our reasons for refusing the application for leave to appeal with costs.
At the outset, we note that where leave to appeal is required, a grant of leave will be appropriate only in matters that involve questions of principle, questions of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable (see Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15]-[21] per Bell CJ, Ward P and Basten AJA agreeing; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 at 3 per Kirby P; Clarke v State of New South Wales [2015] NSWCA 27 at [20] per McColl and Ward JJA; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6] per Bell P and Simpson AJA).
It is well known that the court “exercises great restraint in interfering with an interlocutory decision on a matter of practice and procedure” (see Mohareb v State of New South Wales [2023] NSWCA 289 at [12] per Gleeson and Stern JJA). It has been said that an applicant must show that the decision is infected with error of principle or involves a clear injustice (see Lepcanfin Pty Ltd v Lepfin Pty Ltd (2020) 102 NSWLR 627; [2020] NSWCA 155 (Lepcanfin) at [9], [113] per Bell P, as the Chief Justice then was, Payne and McCallum JJA agreeing).
As the issue here relates to a temporary stay of the proceedings, the standard of review for a discretionary decision of this nature does not appear to be affected by the decision of the High Court in GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 in relation to permanent stays (see Zey v State of New South Wales [2026] NSWCA 134 at [93] per Ward P and Mitchelmore JA).
Briefly, by way of background, it suffices to note that, in June 2024, Mr Jaworski commenced proceedings against CA ANZ (2024/238672) (the earlier proceedings) seeking the “[g]rant of leave for derivative action per Request in attached Affidavit” (see Jaworski v Chartered Accountants Australia and New Zealand [2024] NSWSC 1052 (Jaworski (No 1)) at [5]). Mr Jaworski did not serve the summons on CA ANZ. Rather, Mr Jaworski sought orders that the proceedings be determined ex parte. Black J refused to make orders for the matter to proceed ex parte (see Jaworski (No 1) at [6]-[8]), delivering three separate judgments in the earlier proceedings in relation to this issue (Jaworski (No 1); 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).
In the earlier proceedings (which in due course Black J heard), Mr Jaworski, in his by then amended summons, sought an order in effect that CA ANZ indemnify him for pursuing claims derivatively on behalf of CA ANZ. Those claims concerned his complaints as to the quashing of a number of member requisitions at CA ANZ’s 2020 Annual General Meeting, a resolution by CA ANZ in 2021 to change its by-laws, alleged unauthorised director remuneration, allegedly misleading financial reporting, and the refusal by CA ANZ to arrange for an impartial review of conduct which Mr Jaworski had called into question in the proceedings. (CA ANZ argues that these allegations are relevantly similar, and, in significant respects, nearly identical, to the allegations made in the current proceedings from which Mr Jaworski now brings the application for leave to appeal.)
On 13 May 2025, Black J dismissed Mr Jaworski’s amended summons (Jaworski v Chartered Accountants Australia and New Zealand (No 4) [2025] NSWSC 457) and on 10 June 2025, Black J ordered that Mr Jaworski pay CA ANZ’s costs as agreed or assessed (Jaworski v Chartered Accountants Australia and New Zealand (No 5) [2025] NSWSC 590 (Jaworski (No 5))). Black J subsequently (on 19 December 2025) made orders by consent fixing the costs which his Honour had ordered in Jaworski (No 5).
On 10 June 2025, Mr Jaworski filed a notice of appeal from Black J’s decision to the Court of Appeal, which Stern JA dismissed with costs on 7 August 2025, on the basis that it was incompetent because the orders were interlocutory and leave was required (Jaworski v Chartered Accountants Australia and New Zealand [2025] NSWCA 177). On 19 December 2025, Stern JA made orders by consent fixing the costs her Honour had ordered on 7 August 2025.
Although the proposed grounds of appeal traverse the outcome of the earlier proceedings, it is important to emphasise that the decision from which Mr Jaworski now seeks leave to appeal is the decision temporarily to stay the proceedings pending him paying the costs ordered against him in the earlier proceedings and the earlier Court of Appeal proceedings.
After a brief introduction, the primary judge set out the procedural history of the matter ([5]-[24]), briefly described the current proceedings as compared to the earlier proceedings ([25]-[26]), and then turned to the question whether the proceedings should be stayed ([27]ff).
His Honour noted the reliance placed by CA ANZ on the reasons of Giles JA (Spigelman CJ and Basten JA agreeing) in CGU Insurance Ltd v Watson [2007] NSWCA 301 (CGU Insurance v Watson), where his Honour said (at [40]-[41], [43]):
- The Supreme Court has an inherent jurisdiction to prevent abuse of its procedures, and may stay or dismiss proceedings the bringing or continuance of which is an abuse of process … There may also be abuse of process if a plaintiff brings against the defendant second proceedings “in the same cause” without having paid the costs of the first proceedings; this will ordinarily found a stay of the second proceedings until the costs have been paid.
- The necessity for the second proceedings to be in the same cause as the first, an expression which I have taken from ldoport Pty Ltd v National Australia Bank Ltd [2006] NSWCA 202 at [104], has been variously stated … In ldoport Pty Ltd v National Australia Bank Ltd the sameness of cause was later expressed at [110] as “identity of issues” and at [112] as “an identity of the central issue” ...
- The exercise of the inherent jurisdiction is not tied to a particular form of words, and the various expressions I have noted were in aid of the concept of abuse of process; it was the true measure of whether the second proceedings were to be stayed …
His Honour noted at [29] that, in the earlier proceedings, the central issue was whether Mr Jaworski should be funded to bring proceedings on four main claims in the name of CA ANZ against its current and former officers and that, by the current proceedings, Mr Jaworski sought relief in his own name against CA ANZ. His Honour noted that the new case was different to the previous one in that the new proceedings sought 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, but his Honour said that the underlying conduct said to justify the relief in the new proceedings was essentially the same conduct that Mr Jaworski advanced to justify the relief sought in the earlier proceedings ([29]).
His Honour considered it unnecessary to engage in a close consideration of what is meant by proceedings “in the same cause” (see CGU Insurance v Watson at [40]), noting that Mr Jaworski had had an opportunity before Black J in the earlier proceedings against CA ANZ to show on a prima facie basis that his claims of wrongdoing had substance, which had failed ([31]). His Honour said that Mr Jaworski now wished to make the same claims of wrongdoing (together with a closely related claim) in new proceedings against CA ANZ ([31]).
His Honour concluded that, in circumstances where Black J had found that the claims Mr Jaworski wished to bring had no prima facie evidentiary basis, Mr Jaworski was making vexatious use of the Court’s processes in seeking to agitate the same claims when he had failed to meet outstanding costs orders of the Court and Court of Appeal. His Honour considered it unreasonable, for so long as he had failed to pay the costs, for Mr Jaworski to pursue the current proceedings, and held that it was an abuse of the processes of the Court ([35]).
His Honour acknowledged that a stay pending the payment of costs might stifle the proceedings but said that the significance of that concern was considerably diminished once it was appreciated that Mr Jaworski had already had an opportunity to advance his contentions as to wrongdoing and had failed to persuade the Court in the earlier proceedings that there was a prim**a facie basis for the claims he wished to advance ([36]).
His Honour also noted that, in determining whether to make an order for security for costs, a relevant matter is whether the order would stifle the proceedings but considered that there was 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 had been concluded ([37]). His Honour did not consider that there was a relevant analogy between an application for security for costs for a potential costs order and (as was the principal basis for the motion before him) an application for a stay pending payment of previous costs orders ([37]).
As noted above, Mr Jaworski filed lengthy submissions in support of his application for leave to appeal. Those submissions addressed Mr Jaworski’s various contentions as to: the alleged impropriety in bringing the motion for the stay (in essence on the basis that the CA ANZ controlling officers lacked the impartiality required to instruct lawyers in the case); alleged bias on the part of the primary judge and denial by him of procedural fairness; and alleged errors of principle and fact in the primary judgment. The written submissions also appear to seek leave to lodge an appeal (referred to as “that ‘incompetent’ appeal”) to correct alleged procedural unfairness and a miscarriage of justice in the “[d]erivative action judgments” (which we understand to be a reference to the judgments of Black J, or at least to the earlier interlocutory judgments that were the subject of the appeal dismissed as incompetent by Stern JA and in respect of which the High Court refused special leave).
We do not propose exhaustively to set out the respective parties’ submissions, which we have carefully considered. Nevertheless, to put in context our reasoning for refusing the leave application, we have attempted to set out the substance of Mr Jaworski’s contentions.
As to the identification of House v The King error (see House v The King (1936) 55 CLR 499; [1936] HCA 40), Mr Jaworski asserts that the primary judge misapprehended and/or turned a blind eye to “the reality of the circumstances put plainly before him” (which, at least in part, seems to be a reference to the views that Mr Jaworski says a fair-minded lay observer would (cf might, which is the relevant test) have as to the conflict issue) and failed to uphold “important long-standing authorities binding on current courts to administer justice in circumstances where the accused wrongdoers control the victim corporation”.
The authorities to which Mr Jaworski has referred in this regard include the decision of Barrett J in Oates v Consolidated Capital Services Ltd [2008] NSWSC 464; (2008) 218 FLR 73, upheld on appeal in Oates v Consolidated Capital Services Ltd (2009) 76 NSWLR 69; [2009] NSWCA 183, as well as Graham v Sutton, Carden & Co [1897] 2 Ch 367, which he says the primary judge “volunteered” as supporting his judgment. As to the latter, Mr Jaworski notes that it was there said (at 368-9) that “[m]ere non-payment of costs is not now enough to justify an order to stay proceedings. ... [A] party who has been ordered to pay costs has not paid them because he has no means to pay them is no ground for staying proceedings”, and that “[i]f the application rested solely on the ground of non-payment of costs, or on non-payment coupled with inability to pay, it could not succeed”.
Mr Jaworski identifies two main errors on the part of the primary judge: first, holding a misapprehension or misconception that his current underlying “claims” have already been agitated without success and, second, “holding a naïve view around the legitimacy of the costs while ignoring key submissions and legal precedent”.
As previously made clear, this is an application for leave to appeal, not the appeal itself (were leave to be granted). Hence, the submission made by Mr Jaworski as to the detrimental effect on the Court’s legitimacy if the appeal is not upheld is premature. Nor were any substantive rights determined by the primary judge, so leave is required.
As noted earlier, what Mr Jaworski is required to show in order for leave to be granted is error of the House v The King kind (misapprehension of fact or principle, or a result so manifestly unreasonable as to bespeak such error) and that the proposed appeal involves questions of principle, questions of public importance or an injustice that is reasonably clear in the sense of going beyond what is merely arguable.
We do not accept that Mr Jaworski has established House v The King error, nor that the matter involves questions of principle, questions of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable. No aspect of the substantive claims sought to be raised by Mr Jaworski in the proceedings was required to be determined by the primary judge; nor was any so determined. Although complaint is made as to the observations made by the primary judge on the conflict issue, they were a recognition of the fact that, at a prima facie level, there had already been a determination that the evidentiary foundation for Mr Jaworski’s claims had not been established. That was a correct observation.
Insofar as Mr Jaworski contends that the primary judge passed over key aspects of the reasoning in CGU Insurance v Watson and, in particular, the observation at [57] that declaratory relief is not in itself a cause of action, CA ANZ accepts that a declaration is not itself a cause of action but, rather, a claim for relief or remedy. However, CA ANZ argues, and we agree, that the relevant point is that the conduct the subject of complaint (and the basis for the declaratory relief sought) is in substance that which was the subject of complaint in the earlier proceedings.
Insofar as Mr Jaworski contends that this (or other findings in the primary judgment) gives rise to an apprehension of bias, a complaint about reasoning or result is not a proper foundation for an allegation of bias. What is required for an allegation of apprehended bias (as explained in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8] (Ebner)) to satisfy the colloquially known “double might” test is: “(1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer” (see [2024] HCA 32 at [92]; (2024) 98 ALJR 1163 per Gageler CJ, Gleeson, Jagot and Beech-Jones JJ).
This matter was initially listed for judgment on 9 September 2026. The day before judgment was to be handed down, the associate to the presiding judge received an email communication from the solicitor for the respondent (described as a joint communication from the parties) advising that late on 7 September 2026 Mr Jaworski had raised a concern as to apprehended bias on the part of the presiding judge on the basis that junior counsel for the respondent was previously the Researcher to the Equity Division while the presiding judge was Chief Judge in Equity. The solicitor for the respondent advised that Mr Jaworski was content for the presiding judge to consider how she wished to deal with the matter but that the respondent considered that the matter should be re-listed in open court for Mr Jaworski to address the Court on his concerns. The listing for judgment was then vacated and the matter listed before the Court later in the day on 9 September 2026. Pausing here, there was nothing improper in the solicitor for the respondent conveying to the Court that concerns had been raised by Mr Jaworski as to apprehended bias and seeking for the issue to be addressed in open Court. Later on 8 September 2026, the solicitor for the respondent drew to the Court’s (and Mr Jaworski’s) attention that for a six-month period, the son of the respondent’s General Counsel, Ms Chapman, who has a different surname, had been the Researcher to the Court of Appeal.
When the matter came before the Court at 12 noon on 9 September 2026, Mr Jaworski complained that the matter had been re-listed at the request of the respondent’s solicitor in circumstances where one of the key issues in the proceedings (and raised in his proposed appeal) was the alleged wrongdoing of the respondent’s controlling officers in bringing the temporary stay motion before the Court in the first place. Mr Jaworski’s position was that the issue of apprehended bias should be considered on the papers (and he maintained that this Court should not listen to anything that Senior Counsel for the respondent had to say on the issue, since he was instructed by the alleged wrongdoers). Mr Jaworski stated that, by holding the hearing (on the issue of apprehended bias), his appeal request had already been decided. That conclusion does not logically follow.
The difficulty with the course proposed by Mr Jaworski of dealing with the issue of apprehended bias on the papers was that there was nothing in the submissions filed on the leave application (which was then the only matter for determination by the Court) going to an allegation of apprehended bias on the part of the presiding judge and such an allegation should ordinarily be dealt with in open court. We did not consider that such a course was appropriate.
The presiding judge drew Mr Jaworski’s attention to the “double might” test for apprehended bias as articulated in Ebner and to the three step process that is required: first, identification of what it is said might lead a judge (here, the presiding judge) to decide a case (here, the application for leave to appeal) other than on its legal and factual merits; second, articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits; and, third, assessment of the reasonableness of the asserted apprehension of bias (see above at [41]).
For the above reasons we make the following order:
Refuse leave to appeal with costs.
**********
Jaworski
Chartered Accountants Australia and New Zealand
[2000] HCA 63
[1936] HCA 40
[2026] NSWCA 134
(1981) 148 CLR 170
(2022) 108 NSWLR 342
(2024) 98 ALJR 1163
(2000) 205 CLR 337
(2023) 280 CLR 442
(1936) 55 CLR 499
(2020) 102 NSWLR 627
(2009) 76 NSWLR 69
(2008) 218 FLR 73
(2023) 279 CLR 148
(1986) 6 NSWLR 272
Leave to appeal refused with costs; the presiding judge’s recusal application was refused.
Mr Jaworski’s application for special leave to appeal from Stern JA’s decision was refused by the High Court on 6 November 2025. Relevantly, the High Court refused to grant an extension of time for the bringing of that application and otherwise 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).
Meanwhile, on 30 June 2025 (some six weeks after Black J had dismissed Mr Jaworski’s amended summons in the earlier proceedings and after the dismissal of Mr Jaworski’s notice of appeal but before the ensuing High Court special leave application was dismissed), Mr Jaworski commenced fresh proceedings against CA ANZ by summons in the Equity Division (these are the proceedings temporarily stayed by the interlocutory order the subject of the present application for leave). In these proceedings, Mr Jaworski seeks declaratory relief as to the lawfulness of various matters (those broadly being the same as the matters in respect of which claims were made in the earlier proceedings). The declaratory relief is sought based on the circumstances “highlighted” in an affidavit affirmed by Mr Jaworski on 30 June 2025 and attached to the summons.
CA ANZ filed a notice of motion on 12 December 2025, seeking that the question as to Mr Jaworski’s standing to seek any of the relief sought in the summons be determined separately from any other question in the proceedings and before any trial of the proceedings. That motion does not appear yet to have been dealt with (presumably because of the temporary stay of the proceedings).
By a further notice of motion filed on 13 February 2026, CA ANZ sought the stay of the proceedings (pursuant to the Court’s inherent jurisdiction, s 67 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) and/or r 12.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR)), until Mr Jaworski paid the costs ordered against him ($101,100 ordered by Black J; $13,600 ordered by Stern JA). The notice of motion also sought security for costs (pursuant to the Court’s inherent jurisdiction, s 67 of the Civil Procedure Act and/or r 42.21 of the UCPR) in the sum of $277,875 (or such other sum as determined by the Court). The primary judge described the security for costs application as brought in the alternative to the stay application. It is this notice of motion that the primary judge determined.
Before the primary judge, Mr Jaworski indicated that he did not propose to pay the costs ordered against him (see primary judgment at [24]), claiming that he is impecunious.
Thus, subject to consideration of Mr Jaworski’s submission that a stay should be refused because the controllers of CA ANZ were in a position of conflict, the primary judge considered this to be 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 he is obliged to pay to CA ANZ pursuant to the orders of Black J and Stern JA ([38]).
His Honour then considered the conflict issue raised by Mr Jaworski ([39]ff), saying (at [44]) that, as a matter of substance, Mr Jaworski was attacking the retainer of CA ANZ’s external lawyers and that the evidence fell well short of what was required to persuade him not to entertain (or to dismiss) the application to stay the proceedings. His Honour accepted that, on a fully contested hearing, it might be that all of Mr Jaworski’s allegations would be established but said that the possibility that he will succeed was not a sufficient basis to decline to entertain or accept the submissions that were being advanced on behalf of CA ANZ; nor did Mr Jaworski’s belief that the litigation was in the public interest, absolve him from liability to pay the costs or justify him continuing to pursue the claim before he had met that obligation ([46]).
Accordingly, his Honour reiterated that, for so long as the costs remained outstanding, the current proceedings were an abuse of the Court’s processes, and his Honour stayed the summons until payment of the said costs ([49]). It was not necessary in those circumstances for his Honour to consider the alternative claim for security for costs.
As to the allegations of bias and denial of procedural fairness, Mr Jaworski makes a number of assertions, including: that “uncritical acceptance” of the CA ANZ officers’ positions denied him procedural fairness; that failure to consider significant facts and submissions (in particular, as to his impecuniosity and as to the alleged conflict on the part of the CA ANZ officers) amounts to a denial of natural justice and allows bias to be reasonably apprehended or inferred; that the bias “inherent” in the whole of the primary judgment is highlighted by the primary judge “somehow seeing ‘benefit’ to CAANZ in orders for significant costs which no reasonable person could view as ever being recoverable from an impecunious litigant, especially when the alternative was for CAANZ to submit to the Court’s orders on the lawfulness of the impugned conduct for no meaningful cost” (emphasis removed); and that statements in the primary judgment as to the lack of an intention, or refusal, to pay the costs reflects significant bias against him (in circumstances where he is impecunious).
In reply submissions, Mr Jaworski contends that CA ANZ has not “rebutted” what he identifies as the key factors, namely: the absence of impartiality on the part of CA ANZ’s controlling officers; the failure to recognise that the derivative proceedings did not involve substantive causes related to him and that the current proceedings could not be considered to “reignite” failed causes; that the non-payment of costs by an impecunious litigant does not warrant a finding of vexatiousness or abuse of process; that his impecuniosity has the practical effect of stifling the case; and his allegations of denial of natural justice (by the primary judge making “unjustified derogatory remarks” against him); and of bias.
As to the need to point to an error of principle or clear injustice (see Lepcanfin at [113]), Mr Jaworski submits that his appeal documents point to multiple errors of principle, the outcome of which he says results in a “significant miscarriage of justice” to CA ANZ, directly affects its 140,000 members, and indirectly affects the life savings of all Australians through reducing public trust in the financial system. Further, Mr Jaworski submits that, since substantive rights (such as relating to alleged conflict) were effectively determined by the primary judge, it should be incumbent on this Court to grant leave to appeal (referring in this context to Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 180; [1981] HCA 39 per Murphy J). Mr Jaworski asserts that there is a miscarriage of justice “through bias and errors of principle by failing to apply common sense and longstanding authority” and says that the Court’s legitimacy would be called into question if the appeal is not upheld and it would be an affront to the rule of law if leave to appeal was denied.
The submissions filed on behalf of CA ANZ on the leave application address two specific matters: first, the allegation of bias and denial of procedural fairness and, second, the conflict allegations.
The complaint that the primary judge failed to mention Mr Jaworski’s impecuniosity appears to be a complaint that his Honour failed to give sufficient regard or weight to that as a factor in determining the stay application. However, his Honour was clearly aware of the asserted impecuniosity and specifically addressed the issue as to whether imposition of the conditions on which the temporary stay was granted might stifle the proceedings ([36]-[37]). No error (nor any bias) is here shown in that regard.
As to the submission that his Honour failed to consider submissions that the costs orders which formed the basis of the stay order were obtained illegitimately “as part of the alleged wrongdoers’ playbook”, this appears to raise a complaint as to the costs determinations in the earlier proceedings and in this Court, which are not the subject of the proposed appeal.
Whether the primary judge was wrong in concluding that the alleged conflict of interest on the part of the controlling officers did not warrant refusal of a stay is not to the point. His Honour turned his mind to that issue, and the conclusion reached (as to the exercise of his discretion) was not so manifestly unreasonable as to warrant appellate intervention. Again, complaint as to the outcome of the application does not indicate an error or principle in the consideration of that issue. Nor does it indicate bias, as Mr Jaworski contends.
As to the two main “errors” identified by Mr Jaworski, his Honour did not misapprehend the earlier proceedings when explaining that Mr Jaworski’s earlier claims had been agitated without success. We have already explained the context in which those claims were considered by Black J and the fate of the incompetent appeal from his Honour’s decision. As to the asserted naïvety of the view formed by his Honour as to the costs issue (described by Mr Jaworski as the “legitimacy of the costs”), his Honour did not err in proceeding on the basis that those costs orders had been entered and remain binding on Mr Jaworski.
As to the complaint that his Honour misapprehended or misconceived that Mr Jaworski had already had an opportunity to advance his contentions as to wrongdoing, Mr Jaworski did indeed have an opportunity to argue his case at least on a prima facie basis when seeking leave to bring derivative proceedings in relation to those allegations. True it is that the allegations themselves have not been heard or determined (as the primary judge clearly acknowledged when he observed that it might be that all Mr Jaworski’s allegations might be found to be correct) but the underlying premise of the primary judge’s observations is correct. Mr Jaworski has had an opportunity to establish a prima facie case (relevant to the grant of derivative leave which he was seeking) but failed in that endeavour and now seeks (albeit in a personal capacity and in a claim for declaratory relief) to re-agitate the very contentions he previously sought to bring in a derivative proceeding.
The contention that his Honour confused “claims” with “conduct” or erred in treating a claim for declaratory relief as the “same cause of action” as that which was to be the subject of the proposed derivative proceedings is not well founded. The significant aspect of the matter is that the same underlying conduct is the premise for both sets of proceedings, and his Honour formed the view that it was an abuse of process to proceed with the current proceedings when the costs ordered in relation to the earlier proceedings remained unpaid. We see no error in that decision, let alone one that would warrant the grant of appellate leave.
Insofar as Mr Jaworski invokes his status as a “lay litigant in person” to suggest that he should obtain latitude in relation to “any issues” around the form of his application, this misconceives the basis on which the stay application was granted. The issue was not a question of form; it was a question as to whether continuation of the proceedings would be an abuse of process.
Thus, we do not accept that the primary judgment gives rise to “a perverse outcome and miscarriage of justice”. It remains open to Mr Jaworski to pursue his claims if and when the costs orders are met in full.
Mr Jaworski was invited to address those matters. His first submission was that the issue of apprehended bias would only arise if his application for leave to appeal was refused. That, of course, conflates the issue of apprehended bias with the outcome of the application for leave to appeal. If there was a proper basis for asserting an apprehension of bias, this would be the case whatever the result of the application for leave to appeal.
As to the identification of the matter which it is said might lead the presiding judge to decide the application other than on its legal and factual merits, Mr Jaworski pointed to the matters foreshadowed in the respondent’s solicitor’s communication: that fact that junior counsel had been the Researcher to the Equity Division from January 2020 to January 2021 when the presiding judge was Chief Judge in Equity and a Judge of Appeal; and the fact that Ms Chapman’s son (who has a different surname) had been the Researcher to the Court of Appeal for six months from June 2025 to December 2025 while the presiding was President of the Court of Appeal. Both of those time periods pre-dated Mr Jaworski’s application for leave to appeal from the decision of Brereton J.
As to the articulation of the logical connection between that fact and the feared deviation from deciding the application for leave to appeal on its merits, Mr Jaworski appeared to base this simply on the existence of a previous working relationship between the presiding judge and those two individuals. Mr Jaworski submitted that any reasonable fair-minded lay observer would have the reasonable apprehension that the presiding judge might not be impartial or unprejudiced in considering allegations of misconduct against the respondent’s officers in those circumstances. Mr Jaworski found particularly disturbing the fact that the disclosure of the relationship between the General Counsel and the former Court of Appeal Researcher had not been drawn to the Court’s attention at an earlier time.
Mr Jaworski also expressed significant concerns as to the objectivity of all concerned in the matter (senior and junior counsel, the respondent’s lawyer, and those at CA ANZ).
Mr Giles SC made brief submissions as contradictor on the issue of apprehended bias, emphasising the Ebner test and arguing that Mr Jaworski had not articulated a logical connection between the former employment of the respective individuals and the feared deviation from deciding the leave application on the merits but that, in any event, any apprehension of bias would not be reasonable.
In his reply submissions, Mr Jaworski appeared to express the view that he did not think any lay observer would consider the presiding judge’s judgment could not be free from impartiality or prejudice and that he (a reasonable fair-minded lay observer) thought most likely she was not biased but pressed the application in relation to apprehended bias. Mr Jaworski asserted that counsel should have been well aware of the blatant conflict of interest (on the part of CA ANZ’s controlling officers) and should never have brought the stay application; and asserted that a vast array of persons (lawyers, officers of the respondent, the General Counsel and the Chair of the respondent) were all in breach of fiduciary duties and their obligations to the Court. Mr Jaworski raised concerns, if the leave application were to be dismissed, as to the legitimacy of the Court.
The Court adopted the approach identified by each of Gordon, Edelman and Steward JJ in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15 (see Gordon J at [94]-[98]; Edelman J at [108], [131]-[135], [191] and Steward J at [193]).
The presiding judge ruled first on the apprehended bias issue (and what was in effect an oral recusal application). Her Honour referred again to the Ebner test and to the consideration by Bell P, as the Chief Justice then was, in Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94 (Kostov) as to the issue whether a prior professional relationship will disqualify a judge from sitting in proceedings in which the other party to that professional relationship is a party. Here, of course, the situation is one step further removed in that the professional relationships were between the judge and the researchers not a party to the present proceedings.
Her Honour noted the duty of a judge to hear any case in which there was no proper reason to disqualify himself or herself (see Raybos v Tectran Pty Ltd (1986) 6 NSWLR 272, to which Bell P referred to in Kostov at [32] and to his Honour’s further observations at [34]).
Her Honour concluded that the fact that junior counsel had been the Researcher to the Equity Division some five years or so ago did not give rise to a reasonable apprehension of bias. There is no proposed appeal ground alleging misconduct on his part, nor any submissions doing so other than the assertion that he should have appreciated that there was a blatant conflict in the giving of instructions for the stay application to be made (and generalised allegation of breach of fiduciary duties). A reasonable fair-minded lay observer would understand that researchers working with judges in the courts are generally law graduates who will then pursue a career in the law where they may appear or instruct in matters that come before the judge or judges with whom they formerly worked. Any apprehension of bias arising as a result is not reasonable (see for example Gaynor v Local Court of N**ew S**outh W**ales [2019] NSWSC 516). The position is the same in relation to the Researcher to the Court of Appeal, even more so in circumstances where the presiding judge was unaware until the communication from the solicitor for the respondent that he was the son of the General Counsel of CA ANZ and the issue of conflict on the part of the alleged wrongdoers is one that remains open for determination if and when the outstanding costs orders are met and the temporary stay is discharged.
Accordingly, the presiding judge refused to recuse herself from determining the leave application.
When Mr Jaworski indicated that he pressed the objection to the presiding judge continuing to sit on the leave application, the remaining member of the bench, Harrison AJA expressed his reasons for concluding that there was no reasonable apprehension of bias applying the Ebner test.
This Court has therefore proceeded to deliver the judgment that (but for the paragraphs dealing with the apprehended bias issue) would have been published on 9 September 2026.