Gutnick v Bondi Mizrachi Synagogue - [2009] NSWSC 257

CITATION: Gutnick v Bondi Mizrachi Synagogue [2009] NSWSC 257

HEARING DATE(S): 31 March 2009

JUDGMENT DATE :
31 March 2009

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 31 March 2009

DECISION: Refer to para 44 of judgment.

CATCHWORDS: EMPLOYMENT LAW - the contract of service and rights, duties and liabilities as between employer and employee - duration and termination of employment - Plaintiff seeks interlocutory injunction to restrain members of defendant company from voting to terminate his employment as rabbi – a serious question to be tried that an implied term of the contract is that the plaintiff is entitled to life tenure – a serious question to be tried that the plaintiff at final hearing would be entitled to specific performance or an injunction to restrain the termination of the contract without the parties first having had the dispute determined in accordance with Jewish law – damages would not necessarily be an adequate remedy - balance of convenience favours grant of interlocutory relief

CASES CITED: Engel v The Adelaide Hebrew Congregation Incorporated [2007] SASC 234; (2007) 98 SASR 402
Davies v The Presbyterian Church of Wales [1986] 1 WLR 323
Tradition Australia Pty Ltd v Gunson [2006] NSWSC 298; (2006) 152 IR 395

TEXTS CITED: R P Meagher, J D Heydon & M J Leeming: Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 4th ed (2002)

PARTIES: Rabbi Moshe David Gutnick
v
Bondi Mizrachi Synagogue

FILE NUMBER(S): SC 2047/09

COUNSEL: Plaintiff: I M Neil SC & D W Chin
Defendant: J Stoljar SC & D Sulan

SOLICITORS: Plaintiff: Frankel Lawyers
Defendant: Slater & Gordon

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Tuesday, 31 March 2009

2047/09 Rabbi Moshe David Gutnick v Bondi Mizrachi Synagogue

JUDGMENT

1 HIS HONOUR: The plaintiff is employed by the defendant as the rabbi and chief minister of the Bondi Mizrachi Synagogue. He has held that position since 1987. The defendant is a company limited by guarantee and owns the assets of the synagogue. It is through it that the synagogue is conducted. Its members are members of the congregation of the synagogue.

2 An extraordinary general meeting of the general members of the defendant has been convened to be held tonight at 8pm. The purpose of the meeting is to consider and, if thought fit, to pass resolutions that:

“ 1. A report by the Board of the Bondi Mizrachi Synagogue of the financial position of the company be received.
2. That the employment of Rabbi Moshe Gutnick (the plaintiff) be terminated on the grounds of redundancy. "

3 The plaintiff seeks an interlocutory injunction until further order to restrain the members of the defendant from voting on or adopting resolution 2, or any resolution to the effect that his employment as rabbi, chief minister and spiritual head of the defendant's congregation be terminated on the ground of redundancy or otherwise. He also seeks to restrain the defendant's officers from carrying out any…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWSC 257
Decision Date: 31 March 2009

CaseChat Overview and Summary

In the case of Gutnick v Bondi Mizrachi Synagogue, the plaintiff sought an interlocutory injunction to restrain the Bondi Mizrachi Synagogue from voting to terminate his employment as their rabbi. The court was asked to consider whether the plaintiff was entitled to life tenure under an implied term of his employment contract and whether specific performance or an injunction would be appropriate to prevent his termination without first resolving the dispute according to Jewish law. The case raised questions about the duration and termination of employment, as well as the rights and duties of the parties involved.

The court identified several legal issues to be decided. Firstly, it had to determine if there was a serious question to be tried regarding the plaintiff's entitlement to life tenure as an implied term of his contract. Secondly, it needed to consider whether the plaintiff would be entitled to specific performance or an injunction if the dispute were to be resolved in his favour at the final hearing, and whether these remedies were preferable to damages. The court also had to assess the balance of convenience in favour of granting interlocutory relief.

In its reasoning, the court found that there was a serious question to be tried regarding the plaintiff's entitlement to life tenure. It considered that damages might not be an adequate remedy in this case and that the balance of convenience favoured the grant of interlocutory relief. Consequently, the court granted the plaintiff's application for an interlocutory injunction to restrain the Bondi Mizrachi Synagogue from voting to terminate his employment until the dispute could be determined according to Jewish law.

The court's final orders included granting the plaintiff an interlocutory injunction to prevent the Bondi Mizrachi Synagogue from voting to terminate his employment as rabbi. This injunction was to remain in place until the dispute could be resolved in accordance with Jewish law. The court also directed that the matter proceed to a final hearing to determine the plaintiff's rights and entitlements under the employment contract.

Orders