Live Group Pty Ltd v Rabbi Ulman

[2017] NSWSC 1759

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Live Group Pty Ltd and Anor v Rabbi Ulman and Ors [2017] NSWSC 1759
Hearing dates:	9 November 2017, 10 November 2017, 23 November 2017
Decision date:	14 December 2017
Before:	Sackar J
Decision:	See paras [298] – [300]
Catchwords:	CONTEMPT - Contempt of court - improper pressure NATURAL JUSTICE - Rule against bias - Reasonable apprehension of bias - whether principles of apprehended bias applicable to defendants
Legislation Cited:	Commercial Arbitration Act 2010 (NSW) International Arbitration Act 1974 (Cth) Supreme Court Act 1970 (NSW)
Cases Cited:	Aerial Advertising Co v Batchelors Peas Ltd (Manchester) [1938] 2 All ER 788 Agricultural Societies Council of NSW v Christie [2016] NSWCA 331 Attorney General for the State of New South Wales v X (2000) NSWLR 653 Attorney General v Times Newspapers Ltd [1974] AC 273 Bhagat v Global Custodians Ltd [2002] NSWCA 160 Carter v NSW Netball Association [2004] NSWSC 737 Coward v Stapleton (1953) 90 CLR 573 DEF v Trappett [2016] NSWSC 1698 DEF v Trappett [2017] NSWCA 163 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 English and Australian Copper Co Ltd v Johnson (1911) 13 CLR 490 Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 Harkianakis v Skalkos (1997) 42 NSWLR 22 Harrington v Coote (2013) 119 SASR 152 Hillfinch Properties Ltd v Newark Investments Ltd [1981] The Times 1 July In re Mulock (1864) 3 Sw & Tr 599; 164 ER 1407 John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 John Holland v ComCare [2011] FCAFC 164 Johnson v Johnson (2000) 201 CLR 488 Lane v Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245 McGuirk v University of New South Wales [2010] NSWCA 104 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 R v Warby [1983] 1 NSWLR 289 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Judge Leckie; Ex parte Felman (1977) 52 ALJR 155 Smith v Lakeman, 26 L. J. Ch. 305 Sturt v Right Reverend Dr Brian Farran, Bishop of Newcastle [2012] NSWSC 400 The Prothonotary v Collins (1985) 2 NSWLR 549 Trivett v Nivision [1976] 1 NSWLR 212 Witham v Holloway (1995) 183 CLR 525 Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 714 Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775
Texts Cited:	A. Riseley, ‘Improper Pressure on Parties to Court Proceedings’ (1986) Sydney, The Commission, 4. C J Miller, Contempt of Court (Oxford University Press, 3rd ed, 2000) Evelyn Ellis and C.J. Miller, ‘The victimisation of anti-discrimination complainants - is it contempt of court?’, P.L. 1993, Spr, 80-92 John Tarrant, Disqualification for Bias, The Federation Press, 2012 N Lowe and B Sufrin, Borrie & Lowe: The Law of Contempt (4th ed, LexisNexis Butterworths, 2010) Robert Ombres, ‘Hillfinch Properties v Newark Investments Ltd [1981] The Times 1 July’ The Christian Law Review, Vol. 72/73, pp. 60-68
Category:	Principal judgment
Parties:	Live Group Pty Ltd ACN 145320403 (First Plaintiff) Reuven Barukh (Second Plaintiff)   Rabbi Yehoram Ulman (First Defendant) Rabbi Moshe Gutnick (Second Defendant) Rabbi Michael Chriqui (Third Defendant) Rabbi Eli Schlanger (Fourth Defendant)
Representation:	Counsel: SA Wells, JR Anderson (Plaintiffs) I Neill SC, L Saunders (Defendants)   Solicitors: Lazarus Legal Group (Plaintiffs) Schweizer Kobras (Defendants)
File Number(s):	2017/00042068
Publication restriction:	N/A

Judgment

Background facts

The Parties

Legal Principles

Apprehension of bias

Justiciability on the question of apprehension of bias

Contempt of Court

The Parties’ Submissions

The Conflict Resolution Clause

Plaintiffs’ submissions

Defendants’ submissions

Apprehended bias

Justiciability

Plaintiffs’ submissions

Defendants’ submissions

Conduct giving rise to apprehension of bias

Plaintiffs’ submissions

Defendants’ submissions

Charges of contempt

Plaintiffs’ submissions

Charge 1

Charge 2

Charge 3

Charge 4 and 5

Charge 6

Charge 7 and 8

Charge 8

Charge 9

Charge 10

Defendants’ submissions

Charges 1, 3, 4 and 5

Charges 2, 3, 4 and 5

Charges 6 and 9

Charges 7, 8, 9 and 10

Relief

Plaintiffs’ submissions

Defendants’ submissions

The evidence

Rabbi Gutnick

Mr Barukh

Consideration

Apprehension of Bias

Contempt of Court

(1) Context of the charges

(2) Nature of the criminal contempt

(3) Proper subjects of the Statement of Charge

(4) The “pervasive error” in the Statement of Charge

(5) Mr Barukh’s vulnerability

Charge 1

Charge 2

Charge 3

Charge 4

Charge 5

Charge 6

Charge 7

Charge 8

Charge 9

Charge 10

Conclusion

Judgment

1. These proceedings arise from an observant Jew’s refusal to answer the summons of a Rabbinic Court. The Defendants have threatened to impose religious sanctions on Mr Barukh (the second Plaintiff) for failure to attend the Sydney Beth Din in respect of a commercial dispute between the first Plaintiff, Live Group Pty Limited (Live Group) and SalesPort LLC (SalesPort).

2. The Plaintiffs claim the Sydney Beth Din does not have jurisdiction to conduct arbitration proceedings. They further contend the Sydney Beth Din cannot otherwise hear the commercial dispute because of apprehension of bias, and they are in contempt of court by applying calculated pressure on Mr Barukh in threatening religious sanctions unless he acquiesces to the Beth Din process.

3. The Plaintiffs therefore primarily seek declaratory and injunctive relief restraining the Beth Din from hearing the commercial dispute and from continuing to threaten the imposition of religious sanctions on Mr Barukh.

Background facts

4. The Sydney Beth Din appears to have been established in 1905, following the arrival from the United Kingdom of Rabbi Francis Lyon Cohen in Australia. Minutes of the initial appointment of the Sydney Beth Din were made, although they are not entirely legible (TB1, 174).

5. However, the “Sydney Beth Din” appears to have been registered on 28 October 2005, with the Sydney Talmudical College Association being the original holder of that Business Name. From 27 April 2006 onwards the holder type changed to a partnership between Raymond Apple, Moshe David Gutnick, Jeremy Lawrence, David Rogut and Yoram Ulman (RB3 at [14]-[15]; TB1, 131-133) .

6. In 2006, according to Rabbi Gutnick, the Sydney Beth Din’s jurisdiction was challenged by a defendant who refused to adhere to a Beth Din summons. Rabbi Ezra Bastri, the Head of the Jerusalem Rabbinic High Court, ruled and resolved the Sydney Beth Din was considered the fixed Beth Din of Sydney and anyone who attempted to undermine its authority should be sanctioned by the Sydney Beth Din (RG1 [49]).

7. As at 1 January 2015, the ASIC records indicate only Rabbi Gutnick and Rabbi Ulman are the partners of the Sydney Beth Din (TB1, 134-137).

8. In January 2016, Live Group entered into an agreement with SalesPort, a digital marketing company registered in Delaware (Live Group and SalesPort Agreement). The Agreement related to SalesPort assisting Live Group with its social media marketing. The agreement contained a conflict resolution clause which read:

Conflict resolution

In a case of dispute that can not be resolved by the parties or via a 3rd party which is acceptable to both sides we here by agree that the matter shall be brought to the Chief Dayan of Sydney AUS. Rabbi Gutnick who will hear both claims in person or video conference or by phone and his decision will be final and acceptable on both sides…

9. On 18 July 2016, Live Group terminated the agreement with SalesPort pursuant to the termination clause which provided 62 days’ notice and payment for two months over such notice period in the event Live Group terminated.

10. In or around August or September 2016, Rabbi Ulman, at the request of his Israeli colleague Rabbi Yakov Haviv, met Mr Jesse Kuzecki together with Rabbi Yakov Haviv at the Ramada Hotel. Rabbi Schlanger who was Rabbi Ulman’s driver at the time, was present for part of the meeting. Rabbi Ulman had not met Mr Kuzecki before. According to Rabbi Ulman, while the purpose of the meeting was not clear before he met Mr Kuzecki, his recollection is Mr Kuzecki told him about his grievance with Mr Barukh and that he wanted to proceed with the Din Torah in Sydney (T42/10-18).

11. On 17 September 2016 at 01.16am, Mr Kuzecki sent an email to Rabbi Schlanger, copying in Rabbi Ulman, Ihoud Arabonim, Victor Stockinger and Richard Steinberg (TB1, 175). The subject of the email was ‘Moving Forward with The Din Torah FROM ISRAEL’ and opened with:

Shalom From Jerusalem,

I met you In the Ramada Hotel with Harav Hdayan Yakov Haviv, regarding a financial beth din we are going to submit to the Sydney Beth Din which The Rabbi Dayan Rosh Avot Bethi Hadin Of Sydney Accepted to receive and conduct the Din under the Arbitration act were [sic] are to submit the application online soon…

12. On 21 September 2016 at 22.59pm, after no response from any of the recipients of his 17 September email, Mr Kuzecki “replied all” to his own email seeking a response (TB1, 175).

13. On 22 September 2016 at 08.38am, Rabbi Schlanger replied to Mr Kuzecki’s email (TB1, 176):

Hi Josef,

The Beth Din is sitting this morning and we will deliberate on your matter.

Kol Tuv! [all the best!]

14. That same day on 22 September 2016 Rabbi Schlanger and Mr Kuzecki had a telephone conversation (TB1, 177).

15. Also on 22 September 2016 the Beth Din had “brief deliberations” about Mr Kuzecki’s matter, hereafter referred to as the Kuzecki commercial dispute (T48/21-23). At 12.41pm Rabbi Ulman sent an email to Mr Kuzecki asking him to “send us Victors details and we will contact him on Monday” (TB1, 180).

16. At 13.49pm on 22 September 2016 Mr Kuzecki sent a further email to Rabbi Schlanger and Mr Stockinger (TB1, 177).

Hi Rabbi Schlanger,

Thanks for your response and also the quick phone call

as said our Attorny [sic] is indeed cc’ed to this email he is registered in Australia

and wants to talk to the beth Din’s Attorney like Rabbi Gutnick said we are looking to have the Beth Din decision Binding

please send through the information for this attorney so we can be in touch. name, email, phone numbers thanks

Yosef yizchak Kuzecki

17. Later that day at 16.28pm, Mr Kuzecki sent an email to Mr Stockinger, [email protected] and [email protected], copying in Rabbi Ulman, Mr Arabonim and Mr Steinberg (TB1, 179). In the email Mr Kuzecki introduced Mr Stokinger to Rabbi Schlanger, who Mr Kuzecki said “will put you in touch with their in house Attorney to guide us as to what & How exactly needs to happen from a legal point of view to make the Beth Din proceeding Binding by the civil court system.”

18. On 23 September 2016 at 2.35am, Mr Kuzecki sent an email to Rabbi Ulman and Sydney Beth Din providing contact details for Mr Stockinger (TB1, 180).

19. On 25 September 2016 at 21.32pm, Mr Kuzecki sent an email to Rabbi Ulman and Sydney Beth Din which read (TB1, 184):

Richard Make sure victoer gets this its bounching

20. On 26 September 2016 at 15.18pm, Mr Kuzecki wrote an email to Rabbi Ulman, [email protected], Mr Steinberg and Sydney Beth Din, asking among other things (TB1, 181):

What time will you guys be calling Victor Tomorrow AUS time?

21. That same day at 15.23pm, Mr Kuzecki wrote an email to Rabbi Ulman [email protected], Mr Steinberg and Sydney Beth Din, which read (TB1, 182):

Here are Victor’s Details again

22. On 27 September 2016 at 11.09am, Rabbi Gutnick wrote an email to Mr Kuzecki copying in Rabbi Ulman, Rabbi Chriqui, and the Sydney Beth Din (TB1, 186). The email included the following:

Dear Joseph,

Firstly I apologise that I have not been able to give this the proper attention it deserves as I have been travelling extensively and have only now returned home. I haave [sic] tried to call Victor and will continue to do so if this doesn’t satisfy your needs.

The matter would be heard pretty much the same way as a regular arbitration that your lawyers are used to. The only difference is that the Judges play a more active role in a Din Torah as Judges in our law takes a more inquisitorial role to a hearing than the common law system where the two suides [sic] place an adversarial role.

…

I believe this answers all your questions . Please feel free to show this email to Victor and if he needs any further illucidation [sic] I would be happy to try and call again.

All the best

23. That same day at 23.44pm, Rabbi Gutnick sent a further email to Mr Kuzecki, copying in Rabbi Ulman, Rabbi Chriqui and the Sydney Beth Din (TB1, 186). The email forwarded Rabbi Gutnick’s email from earlier that day at 11.09am, and advised Mr Kuzecki the Beth Din would ordinarily appoint an independent barrister to supervise proceedings.

24. Sometime after 27 September 2016 there was a telephone conversation between Rabbi Gutnick and Mr Kuzecki’s lawyer (RG2 [17]). There is no detail of what took place in this conversation.

25. On 29 September 2016 at 14.14pm, Mr Kuzecki sent an email addressed to “Rabbi Gutnick & or Secretary,” copying in Rabbi Ulman, Rabbi Chriqui, Sydney Beth Din, Mr Steinberg and [email protected] (TB1, 187). Mr Kuzecki requested help to “sign up” and submit his claim and pay the filing fee.

26. Between late September and early October 2016 there was a telephone conversation between Rabbi Gutnick and Mr Kuzecki (T113/27-49).

27. On 5 October 2016 at 11.44am, Mr Kuzecki sent an email to Rabbi Gutnick, Sydney Beth Din, [email protected], Rabbi Ulman and Rabbi Chriqui asking for the link on the Sydney Beth Din website to sign up and submit his form and pay a filing fee (TB1, 290). Rabbi Gutnik replied at 14.58pm saying the link “seems to have disappeared…Rabbi Schlanger?”. Rabbi Schalnger as secretary of the Beth Din replied with a link at 16.51pm that day (TB1, 290).

28. Further at 17.03pm that same day, Mr Kuzecki sent an email to the Sydney Beth Din, copying in Rabbi Gutnick, Mr Kuzecki, Rabbi Ulman and Rabbi Chriqui, requesting assistance with making payment of the “lodgement fee” (TB1, 190).

29. At 20.08pm, Rabbi Schlanger sent an email to Mr Kuzecki attaching the Sydney Beth Din claim form and informing Mr Kuzecki of the time for payment of lodgement fees (TB1, 190).

30. On 6 October 2016 at 20.22pm, Mr Kuzecki sent an email to Rabbi Ulman, Rabbi Gutnick, Rabbi Chriqui, and Sydney Beth Din, copying in Mr Arabonim, Julian@asiamaze, and Mr Steinberg. The email attached a claim form, the Salesport and Live Group Agreement, a location brief and three photographs of the other parties (TB1, 191). In the cover email, Mr Kuzecki stated, among other things:

I would now like to respectively request that the Beth Din execute its legal authority and summon Reuvan Barukh (and all other shareholders of Live Group Pty Ltd ) to appear for arbitration proceedings at the Sydney Beth Din. I am requesting this assistance from the Sydney Beth Din due to the unfortunate fact that Reuven, in addition to flagrantly breaking Jewish Law by failing to reimburse me financially for monies owed and also taken my half of a company livecapital.com.au which I built…

31. On 26 October 2016 at 16.28p, Mr Kuzecki “replied all” to his own email sent at 20.22pm on 6 October (TB1, 210):

Please confirm that you got this email and tell me if im missing any info? And if not how are we moving forward now that the high holidays are behind us.

32. On 23 November 2016 at 20.07pm, Mr Kuzecki “replied all” again, and enclosed email addresses and phone numbers for Mr Barukh, Katherine Barukh and Elana Barukh-Sotil (TB1, 199). Mr Kuzecki also requested Rabbi Schlanger send out the Hazmona (being the Summons) to the emails, send him a copy of the Hazmona, and inform him of their response to the Hazmona.

33. On 24 November 2016 at 07.08am, Mr Kuzecki resent the email of 23 November 2016, again requesting the Hazmona be sent (TB1, 198).

34. That same day on 24 November 2016, Rabbi Gutnick had a conversation with Mr Kuzecki, where Rabbi Gutnick told Mr Kuzecki the Hazmona would go out in 48 hours (TB1, 213; T126/41-50).

35. On 28 November 2016 at 14.40pm, Mr Kuzecki sent an email to Rabbi Gutnick, Sydney Beth Din, and Rabbi Ulman titled ‘Please resend copy of Hazmona to me,’ where he requested confirmation the Hazmona had been sent (TB1, 213).

36. On 5 December 2016 at 15.45pm, Mr Kuzecki sent an email to Rabbi Ulman, Rabbi Gutnick and Sydney Beth Din with the Barukhs’ contact information again ‘incase [sic] [they] did not get this’, and again asking for the Hazmona to be sent out (TB1, 201).

37. On or around 13 of 14 December, Rabbi Ulman had a telephone conversation with Mr Kuzecki. Rabbi Gutnick was also possibly part of this call but he did not recall participating in it (T127/48-T128/1).

38. Prior to 14 December 2016, either Rabbi Gutnick or Rabbi Schlanger had a telephone conversation with Mr Kuzecki (T118/12-46).

39. On 14 December 2016, Rabbi Schlanger on behalf of the Sydney Beth Din issued the Hazmona or ‘First Summons to a Din Torah’ to the Barukhs (Beth Din Summons). Rabbi Schlanger sent the Beth Din Summons by email to Mr Barukh and Mrs Katherine Barukh at 19.21pm that day (TB1, 216).

40. On 15 December 2016 at 16.35pm, Mr Kuzecki sent an email to the Sydney Beth Din, Rabbi Gutnick and Rabbi Ulman requesting a copy of the Beth Din Summons, confirmation it had been served on the parties, and details of ‘the exact proceedings from here,’ including if the Barukhs refused to attend (TB1, 215). Mr Kuzecki “replied all” to this email 20 minutes later asking (TB1, 215):

Can you tell me who from the Beth Din called the phone numbers I included to the defendants to verify they indeed got the email?

41. On or around 19 December 2016, Rabbi Gutnick had a telephone conversation with Mr Kuzecki (T130/39-44).

42. On 19 December 2016 at 17.30pm, the Sydney Beth Din forwarded to Mr Kuzecki the email they sent Mr Barukh at 19.23pm on 14 December 2016 attaching the Beth Din Summons (TB1, 217).

43. Rabbi Schlanger also sent an email to Mr Kuzecki that day at 17.37pm, copying in Rabbi Gutnick (TB1, 219):

I have spoken to Cathy Barukh and she confirmed she has received the email.

44. That same day on 19 December 2016 at 17.40pm, Mr Kuzecki replied to the Sydney Beth Din, Rabbi Gutnick and Rabbi Ulman (TB1, 333):

Thanks for your email…finally got a copy of the Hazmonah

[…]

So just need to know by what date you will have confirmation that the other side is signed it as-well so we can move forward?

45. Several minutes later at 17.55pm, Mr Kuzecki sent an email to the Sydney Beth Din, Rabbi Ulman and Rabbi Gutnick, addressed to Rabbi Schlanger and suggesting he contact Mrs Katherine Barukh (TB1, 219):

I spoke RAVD Gutnick this morning my time and I would also like to know his instructions as they did not respond to your Hazmona or did they?

46. The Sydney Beth Din replied to that email at 17.59pm on 19 December 2016 (TB1, 219):

Hi Josef, I will call him tomorrow at the office.

47. Mr Kuzecki responded at 18.04pm that evening, suggesting methods for how Mr Barukh could be contacted and asking for Rabbi Schlanger’s thoughts on his suggestions (TB1, 219-220).

48. Mr Kuzecki sent a further email at 18.55pm to Rabbi Gutnick, copying in Rabbi Ulman and the Sydney Beth Din (TB1, 220). The email opened with:

Dear Rav”d Gutnick,

Thank you for all the support It is crucial that now the other side knows of the [Teviah] to stay on top of this so the other side does not have find the time to siffen off funds or transfur ownership to 3rd parties to ascape a potential loss do the the payout [sic]

…

49. On 20 December 2016, Lazarus Legal Group (Lazarus), on behalf of Mr Barukh, sent a letter to the Sydney Beth Din (TB1, 50). The letter noted Mr Barukh had received the Beth Din Summons on 14 December 2016, and stated for the record Mr Barukh “is extremely perturbed and upset that the Plaintiff has sought to bring such bold and unfounded allegations before the Beth Din.” The letter went on to state:

Clearly no hearing of the Beth Din may take place in the absence of either parties. Mr Barukh has no intention of appearing at a Din Torah with the Plaintiff, and in refusing to do so, he expresses his sincere respect to the Judges of the Sydney Beth Din, but believes that the Beth Din is not the appropriate forum in which the Plaintiff’s grievances should be aired.

Furthermore, Mr Barukh is extremely concerned and upset that his mother, who is not well, should have been dragged into this issue, and more so his sister Elana who is also listed as Defendant. Neither his mother or sister has any dealings with Mr Barukh’s business affairs, and neither of them would know who the Plaintiff is or what his claim is about.

In the circumstances, we request the Beth Din to withdraw the First Summons to a Din Torah on the basis that it is with respect based on claims by the Plaintiff that are unsubstantiated and misguided.

Should the Plaintiff believe that he has a proper claim against Mr Barukh, he is invited to bring proceedings in a civil court here in Australia and to put forward proper legal evidence upon which he proposes to rely in prosecution of his Claim.

50. On 22 December 2016 at 11.25am, the Sydney Beth Din sent an email (signed off by Rabbi Schlanger on behalf of the Sydney Beth Din) to Lazarus, copying in Mr Kuzecki (TB1, 221). The email opened by noting:

1. All members of the Jewish faith are obliged to have their disputes heard in accordance with Jewish Law at a Beth Din. They are not permitted to seek adjudication at a civil court without the express permission of a Beth Din when the other side has refused to abide by a Beth Din summons. In accordance with Jewish Law they are not permitted to refuse such a summons.

51. Rabbi Schlanger further noted Mr Barukh had signed an agreement containing a conflict resolution clause referring all disputes to Rabbi Gutnick, and either Rabbi Gutnick or, preferably, the entire Beth Din were prepared to hear the matter. Rabbi Schlanger also directed the parties to stop making individual approaches to the Beth Din, and to copy each other in on any correspondence.

52. At 3.38pm that same day, Lazarus sent an email to the Sydney Beth Din attaching a letter in response to the Beth Din’s email from earlier that day (TB1, 53-54). The letter included:

We do not propose to continue debating this matter with you through the medium of correspondence. We have made it abundantly clear that this is a civil matter and if the Plaintiff wishes to pursue his claim, he is welcome to take whatever action he deems fit in the appropriate courts.

This is not a matter that can be adjudicated upon by the Beth Din and our Client has no intention of appearing.

53. On 29 December at 3.49am, the Sydney Beth Din emailed Lazarus and included Mr Kuzecki in the email (TB1, 55-56). The email from Rabbi Schlanger on behalf of the Sydney Beth Din set out the grounds in which the Beth Din had jurisdiction, and then noted “As such your client does not have the option to avoid his responsibility in accordance with Jewish Law and the Beth Din can indeed adjudicate this matter.” The email went on to state:

Unless by 5pm January 26 2017 the Beth Din hears from you on behalf of your client that he has recanted and that he acquiesces to the Beth Din process in accordance with Jewish Law, (which is indeed compatible with secular law), and the following halachic sanctions will apply and the Synagogue/s where he prays will be informed accordingly.

1. He will not be counted to a minyan

2. He will not be able to receive an aliyah to the Torah

3. He will not be offered any honour in the Synagogue

There are further sanctions that will be applied should your client maintain his recalcitrance.

…

We advise and urge your client not to underestimate the resolve of the Beth Din in ensuring Jewish Law is adhered to especially with those who profess to adhere to the tenets of Orthodoxy.

54. On 27 January 2017 at 1.10pm, Lazarus sent an email to the Sydney Beth Din attaching a letter (TB1, 57-59). The letter included:

Your attempt to intimidate our client by threatening various forms of ex-communication will not be tolerated. In the event that you proceed with any of the foreshadowed steps outlined in your letter, we have been instructed to institute proceedings forthwith for both injunction relief and/or damages for economic and reputational loss.

…

Our client is prepared, given his strong affinity to the Jewish faith, to appoint a representative to meet with Rabbi Gutnick on a one on one and confidential basis. Failing your agreement to this course, which we would suggest is clearly appropriate in the circumstances, we request your written undertaking to desist from proceeding with the threatened action and withdraw from any proposed hearing process.

Unless we are in receipt within 7 days of your agreement to the proposed meeting, or in the alternative, the requested undertaking, we are instructed to commence proceedings forthwith in the Supreme Court of NSW for any and all appropriate relief, including damages, an injunction and costs…

55. On 30 January 2017 at 5.44pm, Lazarus sent an email attaching a letter to the Beth Din which, among other matters, raised concerns about Mr Kuzecki’s identity (TB1, 60-62). The letter also noted Mr Barukh would commence proceedings in the Supreme Court of New South Wales if the Beth Din did not give an undertaking they would cease to take any further step in relation to the Beth Din Summons.

56. That same day Rabbi Gutnick called Mr Kuzecki regarding Lazarus’ letter and requested he provide his passport (T144/3-10).

57. That same day at 10.02am, Rabbi Schlanger sent a message to Mr Kuzecki (Affidavit of Rabbi Schlanger dated 9 November, 2017 Annexure A):

Please send me a copy of your Teudat Zehut.

58. On 31 January 2017 at 00.58am, Mr Kuzecki sent an email to the Sydney Beth Din, Rabbi Ulman and Rabbi Gutnick with the subject line “the invisible man,” and enclosing his passport (TB1, 230).

59. That same morning at 1.23am, Mr Kuzecki sent a further email to the Sydney Beth Din, Rabbi Ulman and Rabbi Gutnick also in relation to his identity (TB1, 231).

60. At 10.08am, Rabbi Schlanger as the secretary of the Sydney Beth Din sent an email to Lazarus, copying in Mr Kuzecki, Rabbi Gutnick, Rabbi Ulman, and Rabbi Chriqui (TB1, 232). The same email was sent by [email protected] at 10.09am (TB1, 63). The email included the following:

3. Please note the following for your general information. A Jew is obliged by Jewish Law, in the first instance, to resolve his or her disputes via a Beth Din and not through the civil jurisdiction. The Beth Din has a duty, when asked to do so, to summons parties to attend a Din Torah. It is a duty that it can not refuse. As with any court the defendants has the option to file a motion to dismiss an action and if the Beth Din is satisfied after giving the plaintiff the opportunity to respond, the action can be dismissed. However a member of the Jewish Faith does not have the religious option to dismiss the Beth Din.

….

Your various threats of civil action can have no influence on the Beth Din.

61. On 2 February 2017 at 11.44am, Lazarus sent an email attaching a letter to the Sydney Beth Din (TB1, 65-66). The letter noted the Beth Din had conducted enquiries in relation to the applicant/plaintiff and asked for “comprehensive particulars in relation to all such enquiries. Furthermore, it is also clear that you have had some engagement with the complainant directly. We request the immediate provision of all particulars relating to such communications, whether they be in writing or oral.”

62. On 9 February 2017, Live Group and Mr Barukh commenced proceedings in this Court by way of Summons (Exhibit P1).

63. On 14 February 2017, Schweizer Kobras solicitors for the Defendants sent a letter to Lazarus offering undertakings not to impose the threatened sanctions without notice in exchange for the Plaintiffs not pressing for interlocutory relief. After an exchange of letters, the undertakings were agreed with a notice period of 21 days (Exhibit D2).

64. On 15 February 2017, consent orders, including the proposed undertakings, were made.

65. On 28 February 2017, Mr Kuzecki sent an email to the Associate of Justice McDougall (TB1, 85). Mr Kuzecki requested as “an act of loving kindness” and “as a pure act of caring” Katherine Barukh and Elana Barukh be removed from “the Beth Din Claim.”

66. That same day Schweizer Kobras sent an email to Lazarus enclosing two letters (TB2, 56-57). The first letter requested 21 days to issue their notice of intention to adjudicate the matter in the Beth Din (rather than 28 days). The second letter (TB2, 57) included:

We hereby are instructed to give notice to the plaintiff on behalf of the first to fourth defendants (the Beth Din) that unless the plaintiff complies with the orders of the Beth Din and submits to its jurisdiction as his religious obligations require, the Beth Din intends to impose on him the religious sanctions set out in the email from the secretary of the Beth Din to Lazarus Legal Group dated 29 December 2016 (29 December email).

….

On the other hand, if the plaintiff wishes to press the Supreme Court for an interlocutory injunction to prevent the Beth Din from imposing the sanctions referred to in the 29 December email then we are instructed that our clients will cooperate with the plaintiff to obtain an early hearing by the Supreme Court of that application.

67. On 15 March 2017, Mr Kuzecki sent an email to the Supreme Court of New South Wales attaching a document entitled “Sixth Defendant’s Response to Paragraph 21 of the Summons” (TB1, 87-91).

68. On 31 March 2017, the Plaintiffs filed a notice of discontinuance, discontinuing proceedings against SalesPort (the then Fifth Defendant) and Mr Kuzecki (the then Sixth Defendant).

69. On 7 April 2017 expedition was granted in these proceedings.

The Parties

70. The four defendants in these proceedings are all Rabbis of the Sydney Beth Din. The Sydney Beth Din currently comprises three judges (or ‘Dayan’). Rabbi Ulman (the First Defendant) and Rabbi Gutnick (the Second Defendant) are the two senior judges, and Rabbi Chriqui (the Third Defendant) is the more junior of the three. Rabbi Schlanger (the Fourth Defendant) is presently the Registrar of the Beth Din, but was only appointed in October 2016 and prior to that he occupied the position of Secretary (RS [1]; T89-T90), where he also fulfilled the function of Registrar (T91/1-6).

71. As the Sydney Beth Din is not a corporate entity, all references to it or ‘the Beth Din’ hereafter are references to the four Defendants who together make up the religious body.

72. Mr Barukh is now the only member of the Barukh family to be listed as a Plaintiff (namely, the Second Plaintiff) in these proceedings. His company Live Group is the First Plaintiff in these proceedings.

Legal Principles

Apprehension of bias

73. The governing principle of apprehended bias is whether, subject to qualifications of waiver or necessity, a fair-minded lay observer might reasonably apprehend a judge might not bring an impartial mind to the resolution of the question the judge is required to decide; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner) at 344 per Gleeson CJ, McHugh, Gummow and Hayne JJ; Johnson v Johnson (2000) 201 CLR 488 at [11]-[13] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

74. The fictitious fair-minded lay observer has been described as an “informed lay observer,” a “reasonable” or “right-minded” person or a “dispassionate observer”; see John Tarrant, Disqualification for Bias, The Federation Press, 2012 at pp 58-59. Further, the fair-minded lay observer is assumed to have knowledge which would afford an opportunity to consider all the relevant circumstances of the case; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87 per Mason CJ and Brennan J.

75. Ex parte communications may give rise to a reasonable apprehension of bias; R v Warby [1983] 1 NSWLR 289. In Re Judge Leckie; Ex parte Felman (1977) 52 ALJR 155, Gibbs J observed at 158 the question turns on “whether the fact that such a communication has been made would raise a reasonable suspicion that the judge will not or cannot deal with the case fairly and impartially.”

76. Gibbs CJ later summarised the principle in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 346-347:

It is a fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other: see Kanda v Government of Malaya [1962] AC 322 at 337. McInerney J stated the practice as it is generally understood in the profession in R v Magistrates’ Court at Lilydale ; Ex parte Ciccone [1973] VR 122 at 127, as follows:

“The sound instinct of the legal profession - judges and practitioners alike - has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.”

The principle, which forbids a judge to receive representations in private, is not confined to representations made by a party or the legal adviser or witness of a party. It is equally true that a judge should not, in the absence of the parties or their legal representatives, allow any person to communicate to him or her any views or opinions concerning a case which he or she is hearing, with a view to influencing the conduct of the case. Indeed, any interference with a judge, by private communication or otherwise, for the purpose of influencing his or her decision in a case is a serious contempt of court: see Halsbury's Laws of England, 4th ed., vol. 9, par. 28 and cases there cited.

77. The applicability of the rule itself together with its various manifestations may be a matter of degree in each case. This will turn upon the peculiarities of the particular body and its practices. As the majority judgment (Gleeson CJ, McHugh, Gummow and Hayne JJ) in Ebner warned at 344:

The application of the principle in connection with decision makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making.

78. Further, in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, Hayne J observed at 562-563:

[179] Importantly, the rules about judicial prejudgment recognise that, subject to questions of judicial notice, judges, unlike administrators, must act only on the evidence adduced by the parties and must not act upon information acquired otherwise. No less importantly, the rules about judicial prejudgment proceed from the fundamental requirement that the judge is neutral. That requirement for neutrality is buttressed by constitutional and statutory safeguards. Those safeguards include not only the provisions for security of terms of office and remuneration but also extend to statutory provisions prohibiting interference with the course of justice. A judge can have no stake of any kind in the outcome of the dispute. The judge must not "[descend] into the arena and ... have his vision clouded by the dust of the conflict". The central task and, it may be said, the only loyalty, of the judge is to do justice according to law.

[180] Decisions outside the courts are not attended by these features. Reference need only be made to a body like the Refugee Review Tribunal established under Pt 7, Div 9 of the Migration Act 1958 (Cth) to show that this is so. The procedures for decision-making by that body are much less formal than those of a court127. There is no provision for any contradictor and the procedures are, therefore, not adversarial. The decision-maker has little security of tenure and, at least to that extent, may be thought to have some real stake in the outcome. The decision-maker, in a body like the Refugee Review Tribunal, will bring to the task of deciding an individual's application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications. A body like the Refugee Review Tribunal, unlike a court, is expected to build up "expertise" in matters such as country information. Often information of that kind is critical in deciding the fate of an individual's application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment.

(Footnotes omitted).

Justiciability on the question of apprehension of bias

79. As the law stands, a Court may only grant a private law remedy in relation to a challenged decision of a private body when enforcing or protecting an underlying contractual or other entitlement recognised at law or in equity; Agricultural Societies Council of NSW v Christie [2016] NSWCA 331 (Christie) at [35] per Meagher JA. Where there is no “contractual or other entitlement,” the Court has no jurisdiction to intervene in the affairs of a private body.

80. The Court of Appeal in Christie rejected the proposition a mere affectation of reputation is sufficient to invoke the Court’s jurisdiction to intervene in the decision of a private body. Meagher JA (with whom Ward and Leeming JJA agreed) stated at [40]-[41]:

As I have already noted, in relation to the making or enforcement of the committee’s decision, it was not alleged that there was any contract or proprietary right, legal or equitable, or equity that might be enforced, or protected at Mr Christie’s suit by injunction or declaration. At its highest, the relevant effects on Mr Christie of the “voluntary” enforcement of the penalty decision were said to be “financial and reputational”. It was not contended, however, that any such enforcement of that decision, or its publication, was or would be tortious, or involve any unreasonable restraint of trade because of any arrangement or understanding between ASC and its member show societies: cf Buckley v Tutty (1971) 125 CLR 353.

It follows that the primary judge erred in concluding that either the decision in Mitchell, or any other statement of Ipp AJA in Mitchell, provided a principled basis for the Court to grant a private law remedy to Mr Christie….

81. Meagher JA did go on to observe circumstances when natural justice may apply to proceedings of a private body at [54]-[55]:

[54] The extent to which the principles of natural justice apply to proceedings of a private tribunal depends on the construction of the consensual or other arrangements which empower the tribunal to decide any dispute or matter arising between the parties. It is sufficient in this respect to refer to the decision in Dickason v Edwards (1910) 10 CLR 243 at 250–251 (Griffith CJ), 255–256 (O’Connor J) and 262–263 (Isaacs J).

[55] In interpreting the rules of a friendly society that gave authority to such a tribunal to deal with a question of expulsion for misconduct, O’Connor J observed in Dickason (at 255) that “there is always to be read into [the rules] the underlying condition that the proceedings shall be carried on in accordance with the fundamental principles of common justice. It is upon a party who wishes to shut out the implication of that basic condition to show that the rules expressly or by necessary implication negative the implication of its existence”. This statement was applied by Dixon J in Australian Workers’ Union v Bowen (No 2)(1947) 77 CLR 601 at 631.

82. However, in my view, in light of Meagher JA’s findings that there was no principled basis for the Court to intervene in the ASC’s affairs, such comments must be read as based upon the assumption the Court first has jurisdiction to then determine whether and what standards of natural justice applies, and whether that natural justice has been afforded.

83. The decision of DEF v Trappett [2016] NSWSC 1698 (DEF), handed down the day before Christie, is consistent with this proposition. After a review of the authorities including Sturt v Right Reverend Dr Brian Farran, Bishop of Newcastle [2012] NSWSC 400 (Sturt), Beech-Jones J concluded in DEF at [178]:

[178] In the end result, I do not accept that this Court has jurisdiction to review a decision of a private body or tribunal which does not rest upon contract, does not affect the property or effect a restraint of trade but which only affects their reputation. Instead, in such cases the relevant person’s remedy is an action for defamation.

84. Leave to appeal DEF was refused in DEF v Trappett [2017] NSWCA 163 on grounds separate to the question of jurisdiction. However the Court of Appeal (Beazley ACJ, Simpson JA and Sackville AJA) observed at [55]:

It was also relevant to the Court’s determination that there is a serious question as to whether this is a matter in respect of which the Court has or would exercise jurisdiction. The recent decision of the Court in Agricultural Societies Council of New South Wales v Christie may stand in the way of the applicant’s entitlement to or likelihood of the grant of relief. Given the recency of that determination, the Court ought not to embark upon a serious and difficult contested appeal until the applicant has exhausted other avenues of relief available to him.

85. In my respectful view, consistent with my observations in Sturt at [147]-[163] and Carter v NSW Netball Association [2004] NSWSC 737 at [109] per Palmer (which, I accept were not embraced in DEF at first instance nor in Harrington v Coote (2013) 119 SASR 152 at [19] per Karoukis CJ with whom Peek J agreed at [183]), the adverse affectation of reputation by a private body is sufficient grounds for a Court to intervene.

86. Without rehearsing the passages in Sturt at [147]-[163], in my view, while there is mixed authority on whether reputation is a species of property, a person has a real interest in ensuring his or her reputation, which the law presumes is good, not be unjustifiably damaged as a result of unfair or oppressive disciplinary procedure. This is consistent with authorities suggesting damages may be available in certain circumstances for loss of reputation caused by breach of contract; English and Australian Copper Co Ltd v Johnson (1911) 13 CLR 490; Aerial Advertising Co v Batchelors Peas Ltd (Manchester) [1938] 2 All ER 788.

87. However, I accept this view is at odds with the Court of Appeal in Christie, which I am bound to accept, and which held identifying an effect of a private body’s decision on a person’s “reputation and livelihood” is an insufficient basis to ground jurisdiction, in the absence of a contract, an effect on property rights or restraint of trade.

Contempt of Court

88. The law of contempt of court is grounded in the judicially recognised right of unimpeded access to the courts. Absent some express disqualification, generally all citizens have a common law right of access to the courts. As Lord Diplock stated in Attorney General v Times Newspapers Ltd [1974] AC 273 at 307-309:

The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.

89. Further, Jordan CJ noted in an oft cited passage in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 249-250:

It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all manner of prejudice.

90. Contempt of court operates to protect this “extreme public interest”. The principles of contempt of court by improper pressure on a party were helpfully distilled by Mason P in Harkianakis v Skalkos (1997) 42 NSWLR 22 (Harkianakis) at 27-30. An expansion of the principles set out by the learned President in Harkianakis relevant to these proceedings follows.

91. To succeed in a claim for contempt, the claimant must demonstrate to the criminal standard, the conduct had as a matter of practical reality, a real and definite tendency to interfere with the course of justice; John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 372. This has been formulated using various terms, as summarised by Mason P in Attorney General for the State of New South Wales v X (2000) NSWLR 653 at [170]:

[170] The prosecutor was required to establish beyond reasonable doubt that the publication had "as a matter of practical reality, a tendency to interfere with the course of justice in a particular case" (John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 370). In Hinch Mason CJ (at 27-28) thought that a test of "substantial risk of serious interference" would best reconcile the conflicting demands for a free press and for a fair trial, whilst conceding that it was synonymous or virtually synonymous with other authoritative formulations. Wilson J (at 34) spoke of a need to demonstrate a "real and definite tendency to prejudice or embarrass pending proceedings". Deane J (at 47) suggested "clear tendency" as a suitable paraphrase. See also per Toohey J at 70.

92. The distinction between civil and criminal contempt was set out by the High Court (Brennan, Deane, Toohey and Gaudron JJ) in Witham v Holloway (1995) 183 CLR 525 (Witham) at 530:

In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice.

93. A further distinction relevant to the law of contempt is between proper and improper pressure. As Mason P said in Harkianakis at 30:

In punishing certain types of interference with litigants, the law is concerned to distinguish between proper and improper pressure…This is because the litigant's freedom to conduct litigation as he or she chooses is not an absolute one. The distinction between proper and improper pressure is also encountered in restitution and contract law with their categories of economic duress…The fixing of an early hearing date by a judicial officer puts pressure on a litigant, but no one would categorise such pressure as improper. Likewise with the disinterested persuasion to settle by a member of the litigant's family. But not all pressure is as disinterested, or can claim such obvious justification in the public interest. Pressure may be actual or threatened, conditional or unconditional. What is done (or threatened) may be lawful or unlawful conduct. The mere fact that something that is lawful is threatened does not mean that the pressure is necessarily proper. Were it otherwise, a threat to report a legal practitioner to a professional disciplinary body (cf In re Martin, The Times, 23 April 1986) or to commence a prosecution (cf Smith v Lakeman) could not constitute a contempt. Yet it clearly may.

94. Spigelman CJ expanded upon this in Bhagat v Global Custodians Ltd [2002] NSWCA 160 (Bhagat) at [35]-[39], observing at [38-[39]:

[38] Whether or not the pressure sought to be applied in a particular case can be described as “improper”, depends on all of the circumstances of the case. The various statements in the letters in these proceedings must be read in the whole context.

[39]…A firm assertion that the other party must lose and a reasonable statement of the consequences of loss is not a contempt, even if it does exert pressure on a party to withdraw proceedings. The position is otherwise if a demand of that character is accompanied by improper threats or assertions.

95. In the same case, in agreeing with the Chief Justice, Ipp AJA said at [54]:

[A]t least in cases of contempt of Court involving private communications to individuals, regard should be had to the subjective characteristics of the recipients of the communications. That is to say, there should be an objective assessment of the relevant materials, having regard to the subjective characteristics of the recipients of the communications.

96. Spigelman CJ in Bhagat further observed at [49]:

[49]…At least in the present context of private communications between parties to proceedings, I see no reason why the particular vulnerability of a party, in terms for example of age and means, should not be a material consideration when determining whether the pressure was improper. At least in such a context, I do not see why the Court must choose between an objective and a subjective test. Both dimensions may be pertinent when formulating the judgment about impropriety.

97. The New South Wales Court of Appeal most recently cited Bhagat in McGuirk v University of New South Wales [2010] NSWCA 104 at [169].

98. In Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 (Mirus), Ward CJ in Eq discussed the distinction between contempt arising from conduct that interferes with the administration of justice in a particular case, and interference with the administration of justice generally. Her Honour termed the latter “the ‘broader’ category of contempt” (at [130]), consistent with the High Court’s description of the offence in Lane v Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245 at 257 as “action or inaction amounting to an interference with, or obstruction to, or having a tendency to interfere with or obstruct the due administration of justice, using that term in a broad sense.”

99. Her Honour in Mirus also made reference to The Prothonotary v Collins (1985) 2 NSWLR 549, where McHugh JA’s comments sat consistently with her Honour’s observations about the ‘broader’ category of contempt. In particular, McHugh JA said at 567:

Time and again the courts have said that there can be no contempt unless proceedings are pending: see James v Robinson (1963) 109 CLR 593 at 602–607. Cases of interference with the administration of justice as a continuing process are no doubt an exception to this rule. Their rationale is different from publications which interfere with particular proceedings. They rest on the need to protect the courts and the whole administration of justice from conduct which seeks to undermine the authority of the courts and their capacity to function.

100. In terms of procedure, part 55 of the Supreme Court Rules must be adhered to in filing a Statement of Charge for criminal contempt, pursuant to the principle a person accused of contempt is entitled to know the gist or substance of the charges against him or her; Coward v Stapleton (1953) 90 CLR 573 at 579-80.

101. There are several cases of contempt which fall into a similar category as the alleged claim in this case, namely alleged improper pressure on a litigant. Beginning with the most relevant, but unfortunately also the most inaccessible, in Hillfinch Properties Ltd v Newark Investments Ltd [1981] The Times 1 July (Hillfinch), it was reported Slade J:

…was content to assume that it was a contempt of court for a rabbinical court to threaten practising, orthodox Jews with excommunication merely for the alleged sin of prosecuting litigation, but refused to express final conclusion on the question.

102. As alluded to, despite extensive investigative efforts, I have been unable to locate a full judgment of Hillfinch. A similar issue was flagged by Young CJ in Eq in Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 714 at [17], being the only other authority that appears to have made reference to Hillfinch. A further summary is available by Robert Ombres in The Christian Law Review, Vol. 72/73, pp. 60-68, and the decision is cited in various texts; C J Miller, Contempt of Court (Oxford University Press, 3rd ed, 2000) at 11.09; N Lowe and B Sufrin, Borrie & Lowe: The Law of Contempt (4th ed, LexisNexis Butterworths, 2010) at 10.13 (and pp 428 and 444 in 3rd ed, p 299 in 2nd ed). Hillfinch is also cited in Evelyn Ellis and C.J. Miller, ‘The victimisation of anti-discrimination complainants - is it contempt of court?’, P.L. 1993, Spr, 80-92 at 91, and A. Riseley, ‘Improper Pressure on Parties to Court Proceedings’ (1986) Sydney, The Commission, 4.

103. From full judgments that are available it is plain a threat to a party pending proceedings has long been considered possible conduct giving rise to contempt; see Smith v Lakeman, 26 L. J. Ch. 305; In re Mulock (1864) 3 Sw & Tr 599; 164 ER 1407 (Mulock). In Mulock, a case about threatening a petitioner in a divorce suit with the publication of a statement of facts unless he withdrew the petition, the Judge Ordinary, Sir James Wilde, stated at 601:

From the pressure of this threat Mrs Chetwynd seeks protection, and she claims a right to approach this court free from all restraint or intimidation. It is a right that belongs to all suitors. … No one can doubt that the very offering of such a threat to a suitor in this Court, for such a purpose, is in itself, and quite independently of its subsequent fulfilment, a contempt of Court.

104. In more recent times, Young CJ in Eq observed, albeit on an interlocutory basis, in Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775 at [31]:

…in my view the proposition that putting pressure on a litigant by having a religious excommunication hanging over his head as the price he may pay if he pursues the litigation may well be a contempt of court.

105. This observation was made notwithstanding, as his Honour expressly noted at [32], the pressure of excommunication commenced before the proceedings started.

The Parties’ Submissions

The Conflict Resolution Clause

Plaintiffs’ submissions

106. The Plaintiffs submit the Beth Din does not have jurisdiction to conduct arbitration proceedings under either the Commercial Arbitration Act 2010 (NSW) (CAA) or the International Arbitration Act 1974 (Cth) (IAA) in respect of Kuzecki commercial dispute. The Plaintiffs submit the conflict resolution clause in the Live Group and SalesPort Agreement does not confer jurisdiction on the Sydney Beth Din to act as arbitrator in any arbitration proceedings as the clause refers to “the Chief Dayan of Sydney AUS,” not the Sydney Beth Din. Further, the Plaintiffs submit the two alternative condition precedents have not been fulfilled, Rabbi Gutnick indicated he has no Halachic authority to act in the capacity of sole arbitrator and none of the individuals named as Defendants in the Sydney Beth Din Summons are parties to the Live Group and SalesPort Agreement (Plaintiffs’ closing submissions [80]-[85]).

Defendants’ submissions

107. The Defendants maintain the conflict resolution clause in the Live Group and SalesPort Agreement is a “red herring” and irrelevant to the issues in this case. The Defendants submit while the usual practice of the Beth Din is to require parties to a Din Torah to enter into an arbitration agreement so the Beth Din’s decision is legally enforceable, Rabbi Gutnick and the other Dayanim had reservations about the efficacy of the conflict resolution clause in the Live Group and SalesPort Agreement, and so have proceeded without any regard to it.

108. In their submissions, the Plaintiffs are required to submit to the authority of the Beth Din based solely on the Beth Din’s religious authority and conception of the Plaintiffs’ religious obligations (Defendants’ closing submissions [2]-[5]).

Apprehended bias

Justiciability

Plaintiffs’ submissions

109. The Plaintiffs addressed this issue in closing oral, but not written, submissions. The Plaintiffs rely on Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, Eastham v Newcastle United Football Club Ltd [1964] Ch 413 and Re S (a minor) (independent representation) [1993] 3 All ER 36 in submitting the scope of the Court’s power and jurisdiction to grant declaratory relief under section 75 of the Supreme Court Act 1970 (NSW) is a “very broad power” and should be exercised in this case for multiple reasons (T171/8-T172/45).

110. First, the Plaintiffs point to the seriousness of the sanctions. Next, the Plaintiffs submit there is a very real risk of harm being caused if the sanctions are imposed, both in terms of reputational and economic suffering. Thirdly, the Plaintiffs submit the process the Beth Din intends to impose will require Mr Barukh and possibly Live Group to sign an arbitration agreement which would permit the Beth Din to determine the matter and issue an award which would be capable of being registered as a judgment. On these grounds the Plaintiffs submit there is a real prospect of the Plaintiffs’ legal rights being affected, and the Court would therefore have jurisdiction to grant relief to protect those rights (T172/46-T173/24).

111. Further, the Plaintiffs submit they have a right to not be subjected to a dispute adjudication process where there exists a reasonable apprehension of bias (T173/25-32).

Defendants’ submissions

112. The Defendants submit the Court lacks jurisdiction to grant private law remedies of the kind sought by the Plaintiffs, as the Beth Din is purely religious and has no statutory nor contractual element, and it is the “second red herring” in the Plaintiffs’ case that they presume otherwise. The Defendants state the Beth Din has no ‘jurisdiction’ in any sense of which this Court has cognisance of, and in respect of which it has or would exercise equitable jurisdiction (Defendants’ closing submissions [6]-[8]).

113. The Defendants rely on Christie in submitting the correct analysis is the Court will only intervene in a religious dispute to give a private law remedy such as the declarations or injunctions sought in this case if there is a contract, legal or equitable proprietary right that can properly be enforced or protected by such a remedy.

114. The Defendants maintain there is no such right in these proceedings, nor is the determination of the dispute necessary in order to decide a matter of disputed legal right to property. The Defendants distinguish this case from those cases where the rules of organised churches and voluntary associations have been enforced first on the grounds Orthodox Judaism does not have the character of an organised church as there is no centralised hierarchy. Secondly, the Defendants submit the relationship between the Plaintiffs and the Beth Din has no basis in contract or consensual compact, and thirdly nothing the Beth Din has done can affect any of the plaintiffs’ civil or proprietary rights.

115. The Defendants rely on Trivett v Nivision [1976] 1 NSWLR 212 and DEF to submit that while reputation is sometimes mentioned as a right that can be enforced by a private law remedy, but only where there is a contract (Defendants’ closing submissions [9]-[16]).

Conduct giving rise to apprehension of bias

Plaintiffs’ submissions

116. The Plaintiffs submit there are multiple matters which, objectively determined, would cause a fair-minded lay observer to reasonably apprehend the Sydney Beth Din might not bring an impartial mind to the resolution of the claim brought by Mr Kuzecki. The Plaintiffs point to the number of emails, phone calls and other mobile communications which were “entirely unnecessary” for dealing with procedural matters, and some of which went beyond dealing with procedural matters such as giving advice to Mr Kuzecki as to how he should make his claim.

117. The Plaintiffs also note the Defendants only provided copies of communications between Mr Kuzecki and the Beth Din to the Plaintiffs after proceedings had commenced. Further, the Sydney Beth Din directed all future communications with them be copied to the other party after one email from the Plaintiffs’ solicitors, and despite this Mr Kuzecki and his representatives continued to communicate with the Beth Din to the exclusion of the Plaintiffs. In contrast, Mr Kuzecki was informed of communications between the Sydney Beth Din and Mr Barukh’s lawyers.

116. The Plaintiffs further submit the allegations made in the Beth Din Summons are extremely serious and were communicated to third parties without any inquiries by the Beth Din into the veracity of the allegations (Plaintiffs’ closing submissions [31]-[34]).

Defendants’ submissions

119. The Defendants submit first, the common law rules of procedural fairness do not apply to the proceedings of the Beth Din, and would not apply until the parties to the Din Torah entered into a valid arbitration agreement under the CAA. The Defendants submit the Beth Din is bound by Halachic rules that have a similar effect, with the highly developed Halachic rules pertaining to bias and when the Dayanim can properly have private communications with participants in a Din Torah. Nevertheless, the Defendants maintain the question of whether the Beth Din has abided by its own Halachic rules on procedural fairness is not justiciable in this Court (Defendants’ closing submissions [17]-[20]).

120. Even if the Plaintiffs’ claims concerning apprehended bias are justiciable, the Defendants submit there has been no conduct in support of the claims. After setting out a chronology of the dispute, the Defendants submit no actual bias, lack of independence, or partiality has been established. They say the Rabbis were unshaken in their evidence that they did not know Mr Kuzecki and had no real knowledge nor view of the merits of the case.

121. The Defendants submit while ex parte communications between a decision-maker and a party are potentially inappropriate, they are not automatic grounds for apprehended bias especially when the communications are regarding “procedural, administrative or practical matters” (see John Holland v ComCare [2011] FCAFC 164).

122. The Defendants submit the impugned communications were all relating to procedure, with two exceptions. First, Mr Kuzecki’s email of 6 October 2016 alleging Mr Barukh had failed to reimburse him for ‘monies owed’ and taken his ‘half of a company which [he had] built,’ and secondly Rabbi Gutnick and Mr Kuzecki’s call on or around 24 November 2016 where Mr Kuzecki told Rabbi Gutnick his claim was worth $5 million. In respect of these two exceptions, the Defendants submit they do little more than describe the merits of Mr Kuzecki’s claim and is no more than what would ordinarily be contained in any originating process.

123. The Defendants further characterise the remainder of Mr Kuzecki’s unsolicited emails as characteristic of an anxious, somewhat impatient litigant, and note the Beth Din either did not reply, or, when it did, responded in a “generally minimal and universally focused” way. The Defendants note those types of communications are not unusual in the content of a Din Torah, and all Mr Kuzecki’s communications with the Beth Din occurred before Mr Barukh engaged in the proceedings by refusing to participate. After this point, Mr Kuzecki copied Mr Barukh in all emails except the ‘invisible man’ emails (Defendants’ closing submissions [22]-[66]).

124. Finally, the Defendants submit even if the Plaintiffs’ claims were justiciable the Court should exercise discretion in not making the orders sought since the Plaintiffs’ complaints in this respect can be raised before the Beth Din (Defendants’ closing submissions [67]).

Charges of contempt

125. The Plaintiffs and Defendants deal with the Statement of Charge supporting the Plaintiffs’ claim of contempt in different ways, with the Plaintiffs making submissions on each individual charge and the Defendants making submissions on the conduct said to give rise to several of the charges. The charges are set out in full in ‘Legal consideration’ below.

Plaintiffs’ submissions

Charge 1

126. The Plaintiffs submit the letter from Rabbi Schlanger on behalf of the Beth Din dated 22 December 2016 to Lazarus clearly seeks to prevent Mr Barukh from accessing and seeking relief from a civil court without first complying with the demands made by the Sydney Beth Din (Plaintiffs’ closing submissions [51]-[52]).

Charge 2

127. The Plaintiffs submit the email from Rabbi Schlanger on behalf of the Beth Din dated 29 December to Lazarus is fairly described as a threat, with the gravamen of the communication being Mr Barukh would be subjected to very serious consequences if he continued to ignore the Beth Din.

128. The consequences of the threats outlined by Rabbi Schlanger in that email would, the Plaintiffs submit, have a “devastating effect” on Mr Barukh’s life as an observant Jew. The Plaintiffs rely on Mr Barukh’s affidavit to detail the effect of those threats and possible imposition of the sanctions on Mr Barukh’s personal and professional life (Plaintiffs’ closing submissions [53]-[58]).

Charge 3

129. The Plaintiffs submit the statements in Charge 1 and Charge 2 constitute interference or an attempted interference with the Plaintiffs’ rights to have access to any constitutionally established court of civil jurisdiction in Australia for determination by intending to deter the Plaintiffs from seeking curial vindication of their rights.

130. The Plaintiffs note Rabbi Ulman, Gutnick, Schlanger and Chriqui all accepted the sanctions were serious or significant, and Rabbi Ulman accepted the threat of sanctions was made to put pressure on Mr Barukh to acquiescence in the Beth Din process and he knew the threat would put considerable pressure on Mr Barukh (Plaintiffs’ closing submissions [59]-[61]).

Charge 4 and 5

131. The Plaintiffs rely on their submissions made in respect of Charge 3 in support of Charge 4 (Plaintiffs’ closing submissions [62]-[63]).

Charge 6

132. The Plaintiffs again rely on their submissions made in respect of Charge 3 in support of Charge 6, but also submit the following in respect of the letter from Schweizer Kobras to Lazarus on 28 February 2017. The Plaintiffs submit the 28 February letter is significant as it repeats the threats made in Rabbi Schlanger’s email sent on 29 December 2016, and does so after the Plaintiffs had commenced proceedings. Rabbi Gutnick’s awareness of this timing and his acceptance that compliance with the orders of the Beth Din would effectively require Mr Barukh to give up on his case shows, the Plaintiffs submit, a clear connection between the threats made and these proceedings (Plaintiffs’ closing submissions [64]-[68]).

Charge 7 and 8

133. The Plaintiffs again rely on their submissions made in respect of Charge 3, in addition to those made in respect of Charge 6 in support of Charge 7 and Charge 8 (Plaintiffs’ closing submissions [69]).

Charge 8

134. The Plaintiffs again rely on their submissions made in respect of Charge 3, in addition to those made in respect of Charge 6 in support of Charge 8, but also submit the following. The Plaintiffs allege Rabbi Gutnick’s affidavit affirmed on 3 July 2017 is significant as it foreshadows the consequences for Mr Barukh, as threatened in Rabbi Schlanger’s email of 29 December 2016, that will likely follow if the Court finds the Sydney Beth Din lacks jurisdiction to conduct arbitration proceedings. The Plaintiffs submit it is a further example of the exertion of religious pressure on Mr Barukh, presenting him with a choice of potentially incurring the threatened sanctions for continuing the litigation or abandoning the proceedings to avoid the threatened sanctions (Plaintiffs’ closing submissions [70]-[73]).

Charge 9

135. The Plaintiffs submit the Defendants were or would have been aware of the significance of the threats made in Rabbi Schlanger’s email of 29 December 2016 on Mr Barukh, with Rabbi Gutnick accepting compliance with and submission to the Beth Din’s jurisdiction involved abandonment of the civil proceedings. The Plaintiffs submit the Court would have regard to significance of the threats in assessing the degree of impropriety of the pressure exerted by the Defendants (Plaintiffs’ closing submissions [74]-[76]).

Charge 10

136. In support of Charge 10, the Plaintiffs submit the clear inference open to be drawn from the conduct of the Defendants is it was calculated to deter Mr Barukh from commencing and/or continuing with these proceedings. The Plaintiffs emphasize Rabbi Schlanger’s email of 29 December 2016 foreshadowed the imposition of three sanctions and further unspecified sanctions on Mr Barukh, and the inference from that email and repeating the threats in the email of 28 February 2017 is the Defendants intended to interfere with the course of justice. Further the Plaintiffs emphasize the foreshadowed sanctions have significance for Mr Barukh as a follower of the Jewish faith which bears on the degree to which the pressure is improper, and finally there is a high degree of connection between the conduct engaged by the Defendants on the one hand and the proceedings on the other, leading to the inference the objective of the Defendants is and has been to deter the Plaintiffs from pursuing these proceedings and submitting to the Sydney Beth Din (Plaintiffs’ closing submissions [77]).

Defendants’ submissions

Charges 1, 3, 4 and 5

137. The Defendants admit they engaged in the conduct set out in paragraph 1 of the Statement of Charge, but submit Rabbi Schlanger’s letter of 22 December 2016 does not amount to contempt on several grounds. First the Defendants submit the statement was not inherently calculated to exert pressure on Mr Barukh not to commence proceedings in a civil court as at the time the statement was made, Mr Barukh had not commenced nor given any indication of a desire to commence civil proceedings. The Defendants state the reference to members of the Jewish Faith not being “permitted to seek adjudication at a civil court without express permission of a Beth Din” was in response to Mr Barukh’s invitation to Mr Kuzecki to commence proceedings in a civil court, and was a way of the Beth Din informing Mr Barukh why Mr Kuzecki could not conscientiously accept that invitation.

138. Secondly, the Defendants maintain Rabbi Schlanger’s statement was in any event not improper. It was a private communication, lawful under secular law and a fair, accurate and orthodox statement of the Halachic law, and adopted fair, reasonable and moderate language and tone. The communication of the statement was therefore characterised by the Defendants as “legitimate, suitable and appropriate, and therefore a proper, exercise of the Beth Din’s religious authority.”

139. Thirdly, the Defendants state as Mr Barukh professes himself to be a conscientious adherent of the Jewish faith, the Rabbinical Court has a common interest with Mr Barukh and it would be remiss of the Defendants not to remind Mr Barukh of the content of his obligation.

140. Finally the Defendants state Mr Barukh has shown no vulnerability, at all times communicating with the Beth Din through his lawyers and remaining undaunted by any sense that he is contravening religious obligations (Defendants’ closing submissions [86]-[89]).

Charges 2, 3, 4 and 5

141. The Defendants admit they engaged in the conduct set out in paragraph 2 in relation to Rabbi Schlanger sending a letter on 29 December 2016 notifying Mr Barukh among other things that unless he “recanted and … acquiesce to the Beth Din process in accordance with Jewish law” certain “halachic sanctions” would apply. Nonetheless, the Defendants maintain the conduct was not contempt, whether on the grounds charged in paragraphs 3, 4 or 5 or otherwise for the following reasons.

142. First, the Defendants submit nothing in the 29 December letter was calculated or could be implied to exert pressure on Mr Barukh not to commence proceedings in a civil court, since Mr Barukh had not commenced or suggested commencing civil proceedings. The Defendants submit the sanctions are expressly and solely linked to Mr Barukh’s obligation to answer the Beth Din Summons.

143. Secondly, the Defendants submit nothing in the letter was improper. It was a private communication that did not contain anything unlawful, and was indeed according to the Defendant, legitimate, suitable and appropriate, and therefore a proper exercise of the Beth Din’s religious authority, and might properly be said to have been a duty. Further Mr Barukh and the Beth Din had a common interest through their shared faith, and in the circumstances the letter was firm and direct, but a measured, reasonable and accurate statement of the Halachic doctrine of the consequences that may follow by Mr Barukh continuing to not answer the Summons. In further support of the letter being proper, the Defendants note Mr Barukh had no material vulnerability and the Defendants have acknowledged the Plaintiffs’ right to have access to the civil courts, and it is unchallenged evidence they did not intend to interfere with the Plaintiffs’ right to commence or maintain proceedings in the civil courts at the date of the letter (or thereafter).

144. Separately, the Defendants note they first became aware Mr Barukh was contemplating commencing proceedings in a civil court on 27 January from a letter sent to them by Mr Barukh’s solicitors, and again through a similar letter dated 30 January 2017. The Defendants’ submit Rabbi Schlanger’s response on 31 January 2017 reiterating a failure to attend at a Beth Din would invoke an inevitable religious consequence showed the threatened sanctions only related to a failure by Mr Barukh to respond or attend a Beth Din, and said nothing about Mr Barukh’s threat to commence civil proceedings except to say his “various threats of civil action [would] have no influence on the Beth Din” (Defendants’ closing submissions [85]-[93]).

Charges 6 and 9

145. The Defendants admit to the conduct set out in paragraph 6 of the Statement of Charge, but submit the Beth Din’s letter of 28 February 2017 did not amount to contempt, whether on the grounds alleged in paragraph 9 or otherwise, because it was not calculated to exert pressure on Mr Barukh and there was nothing improper about it.

146. The Defendants characterise the letter as intending to bring the dispute between Mr Barukh and the Beth Din to a head so it could be determined in these proceedings. They submit the letter is consistent with the Defendants’ express acknowledgement of the Plaintiffs’ right to have the dispute determined in Court. They note Mr Barukh lacked vulnerability particularly as he was represented by solicitors and counsel, and the period of notice was the subject of negotiation between the Defendants and Mr Barukhs’ solicitors and was such as would allow, according to the Defendants, Mr Barukh time to move the Court for any relief.

147. Further, the Defendants submit the letter expressly indicates the willingness of the Beth Din to co-operate in the conduct of the Plaintiffs’ proceedings, and propose directions for the further conduct of the proceedings. The Defendants submit in light of their cooperation in the proceedings (such as voluntarily extending their undertaking, consenting to the Plaintiffs’ application for expedition and consenting to directions for an expedited hearing), the Defendants have “actively promoted” the course of justice and fully complied with their obligations under section 56(3) of the Civil Procedure Act 2005 (NSW) (Defendants’ closing submissions [94]-[95]).

Charges 7, 8, 9 and 10

148. The Defendants admit to Rabbi Gutnick stating once proceedings have concluded there is no legal prohibition to the Beth Din continuing to deal with the underlying dispute in according with Halacha or to the imposition of religious sanctions against Mr Barukh, and that the religious grounds for the imposition of those sanctions continue to exist and the Beth Din intends to impose them. However, the Defendants submit these statements as alleged in paragraphs 7 and 9 of the Statement of Charge do not constitute a contempt whether on the grounds charged in paragraphs 9 or 10 of the Statement of Charge or otherwise, as they were not calculated to exert pressure on Mr Barukh not to continue the Court proceedings, and there is nothing improper about them.

149. The Defendants submit paragraphs 9 and 10 of the Statement of Charge ignore Rabbi Gutnick’s caveat that the Beth Din would only proceed with the sanctions provided there was no legal prohibition or legal impediment to it dealing with the underlying dispute according to Halacha. The Defendants note in any event the statements, couched in fair, reasonable and moderate terms, were made in the course of proceedings and clearly for the purpose of their determination. The Defendants submit finding conduct of this nature to be a contempt would itself interfere with the due administration of justice as it would allow the Plaintiffs to effectively obtain the relief sought without having to prove its case (Defendants’ closing submissions [96]-[98]).

Relief

Plaintiffs’ submissions

150. The Plaintiffs submit first, the Court should grant declaratory relief declaring the Defendants lack jurisdiction to conduct any arbitration under either the CAA or the IAA and grant an order restraining the Defendants from conducting any arbitral proceedings under either of the Acts. Secondly, the Plaintiffs submit the Court should grant declaratory relief declaring apprehension of bias in respect of the Kuzecki commercial dispute in the Beth Din, and consequential relief to any such declaration. Thirdly, to the extent any of the conduct constitutes a contempt, the Plaintiffs submit the Court should exercise its “unfettered jurisdiction” in granting declaratory relief as sought in paragraphs 24-27 of the Amended Summons, in addition to orders fining the Defendants for their prior contempt of Court and requiring any such conduct to immediately cease (Plaintiffs’ closing submissions [86]-[97]).

Defendants’ submissions

151. The Defendants submit there would be no utility in the injunctive relief sought by the Plaintiffs if they were successful in their contempt claim, as the Defendants have repeatedly made clear in the event the Court finds against them on this issue, they would not proceed with religious sanctions against Mr Barukh.

152. The Defendants further submit the Plaintiffs have not provided any assistance to the Courts on the question of fines and why the imposition of a fine would be an appropriate exercise of the Court’s discretion (Defendants’ closing submissions [100]-[103]).

The evidence

153. Much of the evidence was immaterial to the issues in these proceedings since those issues primarily rested on contemporaneous communications between the parties.

154. However, in my view Rabbi Gutnick’s affidavit evidence should be set out as it was the principal evidence provided to the Court on the Beth Din and its operations. I will also set out the untested affidavit evidence of Mr Barukh. Evidence of the remaining three Defendants and evidence provided in cross-examination is referenced where necessary.

Rabbi Gutnick

155. Rabbi Gutnick affirmed four affidavits, dated 23 March 2017 (RG1), 9 May 2017 (RG 2), 3 July 2017 (RG 3), and 28 August 2017 (RG 4). While Rabbi Gutnick’s expertise on Halachic law and the activities of the Beth Din was not challenged, none of the affidavits are in the form of an expert report, and there is no adherence to the expert witness code of conduct. Further, he is clearly not independent in that sense. With those qualifications in mind, I will now outline his evidence as set out in his four affidavits.

156. In his first affidavit, Rabbi Gutnick provided his biographical details, before going on to explain what Orthodox Judaism is, how the Jewish legal system operates including the authority of a Rabbi, the structure of Beth Dins around the world and the history and operations of the Sydney Beth Din. Rabbi Gutnick then turned to detailing the reasoning behind summons and sanctions by the Beth Din and the Beth Din’s position on the summons in these proceedings.

157. Rabbi Gutnick explained Halacha is the system of the application of Jewish Law comprising the Torah (comprising the books of Genesis, Exodus, Leviticus, Deuteronomy and Numbers), the prophetic writings (Old Testament) and the Oral Law (RG1 [20]).

235. It is plain Mr Kuzecki has presently no interest or intention of approaching a secular court to have the Kuzecki commercial dispute resolved, but he might. This has placed Mr Barukh in a somewhat invidious position. As a matter of theory, Live Group could approach a secular court seeking certain declaratory relief that it had lawfully terminated its arrangements with SalesPort, but the reality is that SalesPort is a company registered as a foreign entity, and Mr Kuzecki resides seemingly either in Israel or Delaware.

236. In summary, the context in which the charges are to viewed, it seems to me, are to be seen as one in which the Beth Din has never taken a backward step. It has made its position, and indeed its alleged authority, clear at every turn. The Beth Din regards refusal to attend upon it as a breach of Halachic law, and one worthy of religious sanctions of the kind threatened in these proceedings.

(2) Nature of the criminal contempt

245. In my view, it is also important to bear in mind when considering the charges that Mr Barukh has not commenced nor threatened to commence proceedings in a secular court in regards to the Kuzecki commercial dispute. The only relevant proceedings are the proceedings before this Court, concerned with apprehension of bias and contempt of court.

246. It is therefore not a question of whether the threat of sanctions has a real and definite tendency to interfere with the administration of justice in a particular case. Rather, the issue falls into the earlier referred to ‘broader’ category of contempt (Mirus at [130] per Ward CJ in Eq), namely whether the threat of sanctions had and/or has, as a matter of practical reality, a real and definite tendency to interfere with the administration of justice generally.

(3) Proper subjects of the Statement of Charge

247. The Statement of Charge is to Rabbi Ulman, Rabbi Gutnick, Rabbi Chriqui and Rabbi Schlanger. No issue was taken with this position during proceedings, and the case was conducted on the basis the relevant communications were communications for and on behalf of the Sydney Beth Din, meaning communications for and on behalf of each and all of the Rabbis.

248. Nonetheless, in my view it is important to make clear the basis for this position. Despite a large amount of the communications generated from the Sydney Beth Din being sent by Rabbi Schlanger, it is clear on the evidence Rabbi Schlanger was communicating on behalf of the Sydney Beth Din. For example, the communication the subject of Charge 1 was signed off by Rabbi Schlanger “On behalf of the Sydney Beth Din” (TB1, 55-56).

249. Each of the Rabbis accept responsibility for the content of Rabbi Schlanger’s emails (Affidavit of Rabbi Ulman dated 7 November 2017 [2]; Affidavit of Rabbi Chriqui dated 7 November 2017 [2]; Affidavit of Rabbi Gutnick dated 3 July 2017 at [2] and [4]), and Rabbi Schlanger expressly states he did not communicate on his own behalf, but on behalf of the Beth Din which consists of Rabbi Gutnick, Rabbi Ulman and Rabbi Chriqui (RS1 at [2]-[3]). In respect of the 29 December email, Rabbi Schlanger asserted he was given the text of the letter by Rabbi Gutnick (RS1 [7]).

250. Further, the communications by the Sydney Beth Din’s solicitors in my view should be considered as communications by the Sydney Beth Din. All of the Rabbis gave evidence of delegating authority to Rabbi Gutnick to provide instructions on behalf of the Defendants (T12/43-48; T73/50-T74/1; T91/8-17).

(4) The “pervasive error” in the Statement of Charge

251. The Defendants’ repeatedly assert a “pervasive error” in the Plaintiffs’ contempt of court claim is conflating the threat of sanctions not to attend the Beth Din with the threat of sanctions for bringing proceedings in a secular court. Unashamedly, the Defendants wholly accept they have threatened and continue to threaten sanctions on Mr Barukh for refusing to attend upon the Beth Din, and that the threats were intended to put pressure on Mr Barukh to acquiesce to the Beth Din process (eg T55/18-24). However, counsel for the Defendants has repeatedly maintained these threats are unrelated to Mr Barukh’s decision to commence proceedings in a secular court, and only have to do with his refusal to attend the Beth Din (see, for example, Defendants’ closing submission [82]-[84]; T155/50-T156/39; T177/5-T178/11).

252. In my view, this distinction is sophistry. On the evidence, it is plain a necessary implication of Mr Barukh acquiescing to the Beth Din is Mr Barukh having to abandon his claim in the secular courts. Rabbi Gutnick agreed the effect of submitting to the Beth Din’s jurisdiction “would effectively require Mr Barukh to give up on his case in the Supreme Court” (T148/10-13), and Rabbi Ulman agreed submitting to the jurisdiction of the Beth Din was “at odds” with what Mr Barukh was seeking in these proceedings (T57/11-35).

253. Further, Rabbi Gutnick accepted where both parties are Jews, and a Beth Din summons has been issued, neither can resort to a civil court without the permission of the Beth Din (T156/17-20). Rabbi Gutnick went on to say a contravention of this Halachic law would not result in religious sanctions, but accepted the sanction would instead flow from the refusal to attend the Beth Din (T156/20-40). In my view, while the sanctions may, from a strictly technical perspective, be tied to a refusal to attend the Beth Din, the practical reality is the sanctions inevitably result from attending a secular court without the permission of the Beth Din. For the Defendants to contend otherwise is, in my view, disingenuous.

254. On these grounds, the distinction between sanctioning Mr Barukh for failing to attend upon the Beth Din versus not sanctioning Mr Barukh for commencing proceedings in a civil court is a distinction without a difference. As a matter of practical reality, the effect of acknowledging and abiding by the Beth Din Summons is that Mr Barukh would not be able to contemplate or resort to a civil court for the purposes of the dispute. In this sense, the threat of sanctions for failing to attend upon the Beth Din entails, in substance, the threat of sanctions for instead resorting to a civil court.

(5) Mr Barukh’s vulnerability

255. In response to all the charges, the Defendants note “Mr Barukh had no material vulnerability.” The main claims in support of this statement are he was at all relevant time represented by solicitors and “evidently unabashed by the authority and standing of the Beth Din and its Dayanim” (Defendants’ closing submissions [89](b)(vii)).

256. In my view, the Defendants’ reliance on this point is misplaced. Mr Barukh’s evidence – untested and not objected to by the Defendants - gives rise to at least the following inferences. First he and his family are well known to Rabbis Gutnick, Rabbi Chriqui and Rabbi Ulman. As a result, each of the Rabbis fully appreciate, and did at all relevant times, that Mr Barukh was an observant Jew who, along with all relevant members of his family, are thoroughly committed to and immersed in the Jewish faith. Further, the Rabbis would well appreciate the threat of religious sanctions of the kind outlined in the charges and the expected and/or inevitable consequences which would flow to both him and his family.

257. Further, the fact Mr Barukh had, as the Defendants point out, no intention of answering the Beth Din Summons, in my view cannot be seen as altering his vulnerability in any way. Mr Barukh acknowledges the jurisdiction of the Beth Din in relation to matters of Jewish status approval of Jewish marriage celebrants and administration of conversion and Jewish divorces. However, he firmly believes a purely commercial dispute, such as his dispute with Mr Kuzecki, should not be determined by the Beth Din. Support for this belief is found in the acknowledgement by Rabbi Schlanger that the main practice of the Beth Din is in divorce and conversions, with commercial dispute cases considered “rare” (T19/20-50), and Rabbi Gutnick noting the Sydney Beth Din has two commercial disputes before it (RG2 [5]).

258. True it is Rabbi Gutnick and perhaps the other Rabbis believe that the dispute notified by Mr Kuzecki falls within the jurisdiction of the Beth Din. However, this philosophical disagreement between both sides has only served to highlight Mr Barukh’s sense of indignation. His belief commercial disputes should not be or is not part of the Beth Din’s jurisdiction was not challenged. In other words, whilst he may be technically incorrect as a matter of Halachic law the genuineness of his belief was not put in issue and I accept that he is indeed genuine in that regard.

259. Having addressed my findings on these overriding issues, I will now turn to the individual charges to determine whether, beyond reasonable doubt, the particularised conduct of the Defendants had a real and definite tendency to interfere with the course of justice as a matter of practical reality.

Charge 1

260. Charge 1 is as follows:

On 22 December 2016, you, in your capacities as representatives of the Sydney Beth Din, after having received notification on 20 December 2016 that the second plaintiff would not be attending a Din Torah in answer to a Summons dated 14 December 2016 issued by the Sydney Beth Din and that the appropriate forum for the determination of any dispute between the plaintiffs and the fifth and sixth defendants was an Australian civil court, informed the plaintiffs that:

“All members of the Jewish Faith are obliged to have their disputes heard in accordance with Jewish Law at a Beth Din. They are not permitted to seek adjudication at a civil court without the express permissions of a Beth Din when the other side has refused to abide by a Beth Din Summons. In accordance with Jewish Law they are not permitted to refuse such summons.”

Particulars

Letter dated 20 December 2016 from Lazarus Legal (the plaintiffs’ solicitors) to the Sydney Beth Din, sent by email on 20 December 2016 at 5:45 pm;

Email dated 22 December 2016 sent at 11:25 am from Rabbi Schlanger as Secretary and on behalf of the Sydney Beth Din to Lazarus Legal Group.

261. In my view Charge 1 falls short of identifying any conduct which could (let alone, beyond reasonable doubt) be regarded as improper pressure on Mr Barukh so as to have the tendency to interfere with the administration of justice.

262. In my view, the email from the Beth Din of 22 December 2016 does no more than assert that in accordance with Jewish law, members of the faith are obliged not to have their disputes determined by a civil court without the express permission of the Beth Din. This is a statement, albeit a firm one, of the Beth Din’s appreciation of Halachic Law. According to the evidence given by Rabbi Gutnick and the annexure from the relevant textbook, such a statement would appear to be an accurate description of the relevant content of Halachic law, and in this sense cannot be considered improper pressure carrying the tendency of likely to interfere with the course of justice.

263. I accept this letter came after the Beth Din Summons had been served on Mr Barukh making it clear he, along with his mother and sister had to attend upon the Beth Din, and the letter from Mr Barukh’s solicitors of 20 December stating Mr Barukh had no intention of appearing before the Beth Din as it was not an appropriate forum. However, by this stage all that had occurred was, in my view, the exchange of firmly held views about the status of the Beth Din and more to the point whether Mr Barukh had to attend upon it. I do not see how conduct in that context could be seen as conduct likely to interfere with the administration of justice. I would therefore dismiss this charge.

Charge 2

264. Charge 2 is as follows:

On 29 December 2016, you, in your capacities as representatives of the Sydney Beth Din, after having received further notification from the plaintiffs that they considered the dispute the subject of the Sydney Beth Summons [sic] to be a civil matter that ought to be determined in a constitutionally established court of civil jurisdiction in Australia and that the said dispute ought not be adjudicated upon by the Sydney Beth Din, made the following threat to the second plaintiff:

“The Beth Din is a court of law whose jurisdiction applies on all members of the Jewish Faith and in particular those who consider themselves observant as does your client [the second plaintiff]…

Unless by 5pm January 26 2017 the Beth Din hears from you on behalf of your client [the second plaintiff] that he has recanted and that he acquiesces to the Beth Din process in accordance with Jewish Law, (which is indeed compatible with secular law), the following halachic sanctions will apply and the Synagogue’s where he prays will be informed accordingly.

He will not be counted to a minyan.

He will not be able to receive an aliyah to the Torah.

He will not be offered any honour in the Synagogue.

There are further sanctions that will be applied should your client maintain his recalcitrance…

We advise and urge your client [the second plaintiff] not to underestimate the resolve of the Beth Din in ensuring Jewish law is adhered to especially with those who profess to adhere to the tenets of Orthodoxy.”

Particulars

Letter dated 22 December 2016 from Lazarus Legal (the plaintiffs’ solicitors) to the Sydney Beth Din, sent by email on 22 December 2016 at 3:38 pm;

Email dated 29 December 2016 sent at 3:49 am from Rabbi Schlanger as Secretary and on behalf of the Sydney Beth Din to Lazarus Legal Group.

265. In my view, the email from the Sydney Beth Din of 29 December 2016, where the Beth Din for the first time threatens Mr Barukh with specific sanctions, does, beyond reasonable doubt, constitute conduct which places improper pressure on Mr Barukh to not exercise his right to access a secular court, and therefore has a real and definite tendency to interfere with the administration of justice.

266. First, as I have found, the threat of sanctions for failing to attend upon the Beth Din should not, and cannot, be regarded as distinct to any threat of sanctions for resorting to civil courts without permission of the Beth Din. This is particularly clear in the context of the 29 December email, where the threat of sanctions in my view were provoked by Mr Barukh’s suggestion two days earlier that the Kuzecki commercial dispute should appropriately be determined in a civil court (TB1, 50).

267. Further, I am satisfied these threats were inherently calculated to exert pressure on Mr Barukh. The uncontested evidence is these threats have had a serious impact on Mr Barukh, in any number of respects including his emotional and mental welfare (see Plaintiffs’ closing submissions [56]; RB5 [3]-[24]). There is nothing implausible or absurd about those suggestions, and I therefore accept his evidence accordingly.

268. As previously noted (see [255]-[259]), I have little doubt each member of the Beth Din appreciated Mr Barukh was an observant Jew, deeply embedded in the Sydney Jewish community as a member of the Sephardic Synagogue and the Nefesh Synagogue, and therefore vulnerable to threats of “serious” (T45/9-14) or “significant” (T79/13-16) sanctions which would effectively strip him of his identity as a Jew, especially where he would no longer be permitted to be counted in a minyan (see RB5 [8]). Further, I have little doubt on the evidence the Rabbis would not only have anticipated such reactions on the part of Mr Barukh, but indeed deliberately intended to procure them as part of their campaign to coerce him to appear before the Beth Din (see T55/22-24; T66/35-43). That was the very purpose of the sanctions (T59/35-42).

269. Whilst there is no doubt religious freedoms are vital and important in a democracy, they must be balanced against every citizen’s right to approach a court or to insist upon a secular court resolving any alleged commercial dispute between citizens, or for that matter between a citizen and foreign national. In this sense, the Beth Din is perfectly entitled, consistent with the religious beliefs of each of its Rabbis, to firmly hold the view observant Jews should have all disputes between each other determined before an appropriately constituted Beth Din. However, in my view it is neither appropriate nor proper they seek to enforce that opinion by making a threat upon a person to impose religious sanctions for holding an alternative view and manifesting itself in a refusal to attend before them. Ultimately, even assuming that is a matter entirely within the domain of the Beth Din, it seems to me wholly improper he be threatened with punishment because he disagrees from a philosophical stand point with the Beth Din’s jurisdiction.

270. Quite simply, to threaten reprisal of the kind articulated in the 29 December email merely because of a firmly held view a civil court is the appropriate forum for the determination of a commercial dispute, is to not only threaten the integrity of the Court but its authority as the ultimate decision maker. There is no contest between the Beth Din and relevant curial process in the State of New South Wales. The Beth Din is not entitled to insist - under threat of religious sanction - it is the only method by which an observant Jew is entitled to have his or her dispute determined. It is not to the point to simply categorise, in an attempt to trivialise, the Beth Din as purely religious. The Beth Din intends itself to be an exclusive jurisdiction over observant Jews, otherwise penalties ensue.

271. In my view, the Beth Din’s enforcement of this position in the 29 December email can only be seen as improper pressure calculated to intimidate and coerce Mr Barukh to comply with the Beth Din’s directions by attending to, and only to, the Beth Din. This finding is not a restriction on their religious freedom, it is a restriction in our democracy of any person holding and acting upon the view a civil court is the appropriate place for the determination of commercial disputes between Jews, or for that matter gentiles.

272. In my view Charge 2 is made out.

Charge 3

273. Charge 3 is as follows:

The statements made by you as representatives of the Sydney Beth Din set out in paragraphs 1 and 2, above, interfered or attempted to interfere with the rights of the plaintiffs to have unhindered access to any constitutionally established court of civil jurisdiction in Australia for the determination of:

the alleged dispute between the plaintiffs and the fifth and sixth defendants as referred to in the Summons dated 14 December 2016 issued by the Sydney Beth Din; and

the plaintiffs’ rights and obligations with respect to the Sydney Beth Din Summons dated 14 December 2016 and any arbitral proceedings proposed to be conducted by the Sydney Beth Din in relation to the alleged dispute between the plaintiffs and the fifth and sixth defendants.

274. As I understand it, Charge 3 seeks to pick up the statements in Charges 1 and 2 as constituting a third charge. In principle there is no difficulty in combining those for the purposes of formulating Charge 3. I have of course found that Charge 1 is not made out but Charge 2 is. On that basis Charge 3 in my view is arguably otiose and does not advance the matter any further. As I have found Charge 2 to arise, in my view Charge 3 is duplication, in effect, of the substance of Charge 2. I would not find it arose independently of Charge 2.

Charge 4

275. Charge 4 is as follows:

Further, the statements made by you as representatives of the Sydney Beth Din set out in paragraphs 1 and 2, above, were calculated to intimidate and apply pressure upon the second plaintiff aimed at deterring or preventing him from bringing any proceedings in a constitutionally established court of civil jurisdiction in Australia in respect of the Sydney Beth Din Summons and the underlying dispute referred to in the Sydney Beth Din Summons, and instead have him comply with the Sydney Beth Din Summons and submit to the jurisdiction of the Sydney Beth Din to conduct binding arbitration proceedings under either the Commercial Arbitration Act 2010 (NSW) or the International Arbitration Act 1974 (Cth).

276. Charge 4 is said to again rely upon the statements in Charges 1 and 2 as “calculated” to intimidate and apply pressure upon the second plaintiff aimed at deterring or preventing him from bringing any proceedings in a Court but instead to have him comply with the Beth Din summons, submit to its jurisdiction and enter into a binding arbitration agreement pursuant to the CAA or the IAA.

277. The Charge in my view partially succeeds in the sense that I have already determined Charge 2 is made out. As a necessary part of the analysis in Charge 2, as I have already said the email of 29 December was intended to apply pressure to Mr Barukh, aimed at deterring or preventing him from contemplating or bringing any proceedings in a civil court in response to him suggesting the court was the only appropriate place for Mr Kuzecki if there was a bona fide dispute.

278. In my view the mere fact part of the strategy on the part of the Beth Din was not only to pressure Mr Barukh into attending before the Beth Din but to pressure him to enter a binding arbitration agreement was likewise improper. It would certainly not be improper to insist that if proceedings were to be conducted before the Beth Din an arbitration agreement was entered into between the relevant parties, but to threaten religious sanctions for failure to do so in my view is inappropriate.

279. In cross-examination Rabbi Gutnick accepted part of attending the Beth Din would entail signing an arbitration agreement (T141/3-17). However, there is nothing explicit in the email of 22 December, nor 29 December making reference to the necessity to sign an arbitration agreement. That requirement if one can call it that comes out of the Beth Din Summons. However I do not construe the materials suggesting that failure to sign a binding arbitration agreement under either state or federal law was part and parcel of any threat or indeed sanction. To that extent, if that element of the charge falls away then Charge 4 is again in my view no different in substance to Charge 2 which I have found was made out. I would not find Charge 4 arose independently of Charge 2.

Charge 5

280. Charge 5 is as follows:

The interference or attempted interference by you and the pressure applied by you referred to in paragraphs 3 and 4, above, was intimidating and improper and constitutes unacceptable interference with the due administration of justice in a constitutionally established court of civil jurisdiction in Australia and amounts to contempt of Court.

281. Charge 5 attempts to roll up matters alleged in Charges 3 and 4. Because I have rejected Charges 3 and 4, Charge 5 falls away as well.

Charge 6

282. Charge 6 is as follows:

On 28 February 2017, after the plaintiffs had commenced and served proceedings against you in the Supreme Court of New South Wales seeking, inter alia, declaratory and consequential relief challenging the Sydney Beth Din Summons and the jurisdiction of the Sydney Beth Din to conduct the proposed arbitral proceedings, you, in your capacities as representatives of the Sydney Beth Din, made the following threat to the second plaintiff:

“…unless the plaintiff complies with the orders of the Beth Din and submits to its jurisdiction as his religious obligations require, the Beth Din intends to impose on him the religious sanctions set out in the email from the secretary of the Beth Din to Lazarus Legal Group dated 29 December 2016…

In accordance with the undertaking given to the Court on 15 February 2017, this step will be taken on the 22nd day after the date of this letter.”

Particulars

Letter dated 28 February 2017 from Schweizer Kobras (solicitors for the first to fourth defendants) to Lazarus Legal Group (solicitors for the plaintiffs).

283. The letter of 28 February reasserts the authority of the Beth Din and again makes it abundantly plain that unless Mr Barukh complies with the orders to attend upon the Beth Din, religious sanctions would follow as per the 29 December email. True, the solicitors for the Beth Din indicated the Beth Din would cooperate with the Plaintiffs in obtaining an early hearing and further undertook, for the time being at least, religious sanctions would not be imposed.

284. However, in my view the maintenance of the sanctions are not asserted in relation to Mr Barukh’s approach to the Court on 9 February, but should and can only be seen as a continued assertion sanctions will be imposed for his failure to attend upon the Beth Din and recognise its jurisdiction in respect of the Kuzecki commercial dispute. It is that continued assertion which, in my view, clearly amounts to a threat, and as a matter of practical reality has a real and definite tendency to interfere with the course of justice.

285. The failure to attend the Beth Din is, as I have already said, clearly to be understood in circumstances where it is asserted the Beth Din is the sole arbiter of any dispute between observant Jews. Whilst the letter of 28 February could not be construed as maintaining the threat by reason of Mr Barukh having commenced these proceedings, the clear intention on the part of the Beth Din to proceed against him by the imposition of sanctions for failing to attend upon them is what is continued as a threat and is merely suspended until the proceedings are determined in the Court.

286. In my view this maintenance of conduct has the tendency to interfere with the administration of justice. The threats continue to maintain the assertion the Plaintiff was obliged as an observant Jew to abide the orders of the Beth Din and submit to its jurisdiction. Failure to do so has provoked threat of the imposition of the religious sanctions which remain on foot. Therefore this publication, in my view, equally, as a matter of practical reality, has the requisite tendency to interfere with the administration of justice generally and therefore I am of the view that Charge 6 has been made out.

Charge 7

287. Charge 7 is as follows:

On 23 March 2017, you repeated the threat of sanctions referred to in paragraph 2, above, being imposed upon the second plaintiff for his failure to comply with the Summons issued by the Sydney Beth Din dated 14 December 2016.

Particulars

Affidavit of Rabbi Gutnick affirmed on 23 March 2017 and filed in the Supreme Court proceedings at [68]-[69].

288. In my view, [68] and [69] of Rabbi Gutnick’s affidavit of 23 March 2017 are nothing more than explanations of the theoretical religious sanctions that may be applied and the reasons for doing so. Rabbi Gutnick’s explanation is clearly relevant in understanding the context of the email of 29 December 2016 and further communication on 28 February 2017, but independently of that I do not think the fact that Rabbi Gutnick gives the explanation he does constitutes any more than evidence akin to that of an expert. On that basis I do not think Charge 7 arises and I would dismiss it.

Charge 8

289. Charge 8 is as follows:

On 3 July 2017, you gave notice to the plaintiffs that even if the Court finds that there is no underlying agreement in place that provides the Sydney Beth Din with power or jurisdiction to conduct arbitration proceedings under either the Commercial Arbitration Act 2010 (NSW) or the International Arbitration Act 1974 (Cth), the threatened sanctions will nevertheless likely be imposed provided there is no legal prohibition or legal impediment to the Sydney Beth Din dealing with the underlying dispute “according to Halacha”.

Particulars

Such notice is inferred from the contents of the affidavit of Rabbi Gutnick affirmed on 3 July 2017, particularly [6] and [14].

290. Rabbi Gutnick’s statement at [6] of his 3 July affidavit is relevant in the sense he continues to maintain that the threat contained in the 29 December email was not withdrawn and, subject to any order of the Court, will be pursued. I do not regard that conduct as giving rise to any separate charge, so much as I do regard it as a continued assertion the Beth Din is entitled and indeed will proceed with the sanctions unless it is otherwise prevented from doing so. I do not regard that as any more than a statement of the obvious.

291. There is no doubt Rabbi Gutnick, along with his colleagues, do not want to appear to be taking a backward step, but on the other hand unsurprisingly wish to defer to the jurisdiction of this Court. The Plaintiffs submit the Beth Din is placing Mr Barukh in a position where he has to make a choice of either incurring the threatened sanctions or continuing with the litigation. I do not regard the paragraphs of Rabbi Gutnick’s 3 July affidavit as giving rise to that threat. The fact of the matter is Mr Barukh has commenced and is continuing with the litigation.

292. On these grounds I am not satisfied Charge 8 is made out.

Charge 9

293. Charge 9 is as follows:

Notwithstanding your undertakings to the Court to not take any steps to impose any sanctions against the plaintiffs until further order, the threats referred to in paragraphs 6, 7 and 8, above, of the sanctions being applied at some future time, even if the Supreme Court grants declaratory relief declaring that the Sydney Beth Din does not have jurisdiction to conduct arbitration proceedings under either the Commercial Arbitration Act 2010 (NSW) or the International Arbitration Act 1974 (Cth), remain and are calculated to intimidate and apply pressure upon the second plaintiff aimed at deterring or preventing him from continuing with the Supreme Court proceedings and instead have him comply with the Summons dated 14 December 2016 issued by the Sydney Beth Din.

294. Charge 9 suggests notwithstanding undertakings given to the Court by the relevant Defendants not to impose sanctions against Mr Barukh until further order, the sanctions will in fact be applied at some future point even if the Court grants declaratory relief that the Sydney Beth Din does not have jurisdiction to conduct arbitration proceedings under the CAA or IAA. Therefore, the Plaintiffs state the threats remain and are calculated to intimidate and apply pressure aimed at deterring or preventing Mr Barukh from continuing with the proceedings.

295. I do not construe the Defendants’ conduct in that way. I certainly accept the undertakings indicate that for the time being they will not impose religious sanctions. I also understand Rabbi Gutnick to say unequivocally that religious sanctions would not be imposed simply by reason of the fact that Mr Barukh has approached the Court. However, unless otherwise prevented from doing so, Rabbi Gutnick and his fellow Dayan have made it clear they will almost certainly proceed with sanctions against the Plaintiffs by reason of them failing to attend upon the Beth Din. As I have already said I regard that as improper pressure, and as a matter of practical reality, carrying the requisite tendency to interfere with the administration of justice. That however has been dealt with previously by my consideration of Charges 2 and 6. In my view Charge 9 does not arise independently of either of those two charges. In my view therefore Charge 9 fails.

Charge 10

296. Charge 10 is as follows:

The pressure applied by you of sanctions being imposed upon the second plaintiff after determination of the Supreme Court proceedings, and even if the Court declares that the Sydney Beth Din lacks jurisdiction to conduct binding arbitral proceedings under either the Commercial Arbitration Act 2010 (NSW) or the International Arbitration Act 1974 (Cth), is intimidating and improper and constitutes unacceptable interference with the due administration of justice and amounts to contempt of Court.

297. This charge is very similar, if not identical in my view, to Charge 9, and proceeds upon the basis that the pressure applied by the Beth Din of the particular sanction is intimidating and improper and constitutes an unacceptable interference with the administration of justice. I do not see how that differs in substance from earlier charges I have found to arise (Charges 2 and 6). I dismiss Charge 10.

Conclusion

298. I am not satisfied this Court has jurisdiction to intervene in the affairs of the Beth Din, despite it being clear in my view on the evidence the Beth Din has not afforded Mr Barukh natural justice.

299. However, on the question of contempt, in my view the Beth Din’s threat of sanctions directed at Mr Barukh, in the context of the 29 December email and the 28 February letter, is improper pressure which, as a matter of practical reality, has the tendency to interfere with the administration of justice by coercing Mr Barukh to accept the exclusive jurisdiction of the Beth Din and not resort to a civil court to achieve the same result. On these grounds, I am satisfied beyond reasonable doubt the Defendants are guilty of Charge 2 and 6.

300. I will hear the parties on the appropriate relief that should be granted in accordance with my decision, and any question of penalty. I will also hear the parties on the question of costs should the need arise.

**********

Amendments

15 December 2017 - Paragraph [77], quoting Gleeson CJ, McHugh, Gummow and Hayne JJ, change “their judicial system” to “the judicial system”.

Paragraph [83], changed [181] to [178].

Paragraph [122], first sentence, changed to “procedure”

Paragraph [215], changed “did had” to “did have”

Paragraph [233] deleted.

Paragraph [262], changed “not obliged” to “obliged not”.

Paragraph [271], changed fining to finding.

Paragraph [271], final sentence, add the word “not” before “the appropriate place”.

14 December 2017 - para [158] G-D should read G-d

Decision last updated: 15 December 2017