Ulman v Live Group Pty Ltd

[2018] NSWCA 338

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Ulman v Live Group Pty Ltd [2018] NSWCA 338

Hearing dates:

2 and 3 August 2018

Decision date:

20 December 2018

Before:

Bathurst CJ at [1];
Beazley P at [1];
McColl JA at [239]

Decision:

(1)   Appeal allowed in part.

 

(2)   Set aside orders 1, 2 and 3 of 23 April 2018 of the Supreme Court and, in lieu thereof, order that:

 

(a)   the first, second and third appellants pay to the Registrar of the Court a fine for contempt of court in the sum of $7,500;

 

(b)   the fourth appellant pay to the Registrar of the Court a fine for contempt of court in the sum of $2,500; and

 

(c)   the appellants pay the respondents’ costs of the proceedings below on an ordinary basis.

 (3)   The appellants to pay 75 per cent of the respondents’ costs of the appeal.

Catchwords:

CONTEMPT – appellants found guilty of contempt for threatening second respondent with religious sanctions for failing to submit to jurisdiction of a religious court in respect of an alleged commercial dispute – whether primary judge’s findings of contempt were those that were charged – whether primary judge erred in finding appellants placed improper pressure on second respondent to desist from asserting the alleged commercial dispute be resolved in a civil court, which had a real tendency to interfere with the administration of justice generally

 

SENTENCING – criminal contempt – penalties – fine – whether penalties imposed were manifestly excessive

  COSTS – party/party – bases of quantification – indemnity basis – whether primary judge erred in finding appellants should pay part of respondents’ costs on an indemnity basis

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98
Commercial Arbitration Act 2010 (NSW)
International Arbitration Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Agricultural Societies Council of NSW Ltd v Christie (2016) 340 ALR 560; [2016] NSWCA 331
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Attorney-General v Times Newspapers Ltd [1974] AC 273
Attorney-General for the State of New South Wales (on the Relation of MacLeod) v Grant (1976) 135 CLR 587; [1976] HCA 38
Attorney-General; Ex rel Elisha v Holy Apostolic & Catholic Church (1989) 37 NSWLR 293
Avopiling Pty Ltd v Bosevski [2018] NSWCA 146
Bhagat v Global Custodians Ltd [2002] NSWCA 160
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Canterbury Municipal Council v Moslem Alawy Society Ltd (1985) 1 NSWLR 525
Canterbury Municipal Council v Moslem Alawy Society Ltd (1987) 162 CLR 145; [1987] HCA 8
Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266
Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 120; [1983] HCA 40
Commercial Bank of Australia v Preston [1981] 2 NSWLR 554
Coward v Stapleton (1953) 90 CLR 573; [1953] HCA 48
Deen v Stronghearts Pty Ltd (1998) 8 Tas R 432
Einfeld v The Queen (2010) 266 ALR 598; [2010] NSWCCA 87
Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242
Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61
Greenberg v Greenberg 238 AD 2d 420 (1997)
Hancock Prospecting Pty Ltd v Rinehart (2017) 350 ALR 658; [2017] FCAFC 170
Harkianakis v Skalkos (1997) 42 NSWLR 22
Hillfinch Properties Ltd v Newark Investments Ltd [1981] The Times 9 (1 July 1981)
House v The King (1936) 55 CLR 499
Inghams Enterprises Pty Ltd v Timania Pty Ltd (2005) 221 ALR 823; [2005] FCAFC 155
James v Robinson (1963) 109 CLR 593; [1963] HCA 32
John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; [1955] HCA 12
Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245; [1981] HCA 35
Live Group Pty Ltd v Rabbi Ulman [2018] NSWSC 393
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
R v Chief Rabbi; ex parte Wachmann [1992] 1 WLR 1036
Resolute Ltd v Warnes [2000] WASCA 359
Rinehart v Rinehart (No 3) (2016) 337 ALR 174; [2016] FCA 539
Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40
The Prothonotary v Collins (1985) 2 NSWLR 549
Uniting Church in Australia Property Trust (NSW) v Vincent (Unreported, Court of Appeal (NSW), Kirby P, Clarke JA and Sheller JA, 19 August 1994)
Warringah Shire Council v Manly Daily Pty Ltd (Unreported, Court of Appeal (NSW), Hope, Glass and Samuels JJA, 27 August 1985)
Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3
Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775

Category:

Principal judgment

Parties:

Rabbi Yehoram Ulman (First Appellant/First Cross-Respondent)
Rabbi Moshe Gutnick (Second
Appellant/Second Cross-Respondent)
Rabbi Michael Chriqui (Third Appellant/Third Cross-Respondent)
Rabbi Eli Schlanger (Fourth Appellant/Fourth Cross-Respondent)
Live Group Pty Ltd (First Respondent/First Cross-Appellant)
Reuven Barukh (Second Respondent/Second Cross-Appellant)

Representation:

Counsel:
I Neil SC; P Moorhouse (Appellants)
J Gleeson SC; S Wells; J Anderson (Respondents)

  Solicitors:
Schweizer Kobras (Appellants)
Lazarus Legal (Respondents)

File Number(s):

2017/386455

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

Live Group Pty Ltd v Rabbi Ulman [2017] NSWSC 1759; Live Group Pty Ltd v Rabbi Ulman [2018] NSWSC 393

Date of Decision:

14 December 2017; 29 March 2018

Before:

Sackar J

File Number(s):

2017/42068

Headnote

[This headnote is not to be read as part of the judgment]

The appellants are Jewish Rabbis and the judges and Registrar of the Sydney Beth Din, a religious court that administers Jewish law. The Beth Din issued a summons to the second respondent, an observant Jew, in respect of an alleged commercial dispute arising out of an agreement between the first respondent, of which the second respondent was a director, and another company. The second respondent refused to submit to the jurisdiction of the Beth Din, alleging that the proper forum for the resolution of the dispute was a civil court. The appellants informed the second respondent that unless he submitted to the Beth Din’s jurisdiction, he would be subject to a number of religious sanctions. The threats were contained in two communications to the second respondent.

The respondents alleged that the appellants had committed a contempt of court in threatening to impose the religious sanctions. The primary judge found the appellants guilty of two charges of criminal contempt on the basis that each of the two communications had a real tendency to interfere with the administration of justice generally. His Honour imposed monetary penalties on each of the appellants.

The principal issues on appeal were:

1.   Whether the primary judge’s findings of contempt were those that were charged (Ground 1);

2.   Whether the primary judge erred in finding the two communications placed improper pressure on the second respondent to desist from asserting that the alleged commercial dispute be resolved in a civil court and, accordingly, had a real tendency to interfere with the administration of justice generally (Ground 2); and

3.    Whether the penalties imposed on the appellants were manifestly excessive (Ground 3).

The Court held, allowing the appeal in part:

In relation to Ground 1

Per Bathurst CJ and Beazley P (McColl JA agreeing)

(i) The primary judge’s findings of contempt were those that were charged. The appellants were charged with contempt on the basis of an interference with the administration of justice generally: [113]-[121].

Coward v Stapleton (1953) 90 CLR 573; [1953] HCA 48; Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245; [1981] HCA 35; Inghams EnterprisesPty Ltd v Timania Pty Ltd (2005) 221 ALR 823; [2005] FCAFC 155 considered.

In relation to Ground 2

Per Bathurst CJ and Beazley P

(ii) The communications had a real tendency to interfere with the administration of justice generally. They were unambiguous threats that religious sanctions would be imposed on the second respondent if he persisted in asserting that the alleged commercial dispute be resolved in a civil court and were not confined to securing the second respondent’s attendance at the Beth Din: [154]-[159], [170]-[179].

Attorney-General v Times Newspapers Ltd [1974] AC 273; Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242; James v Robinson (1963) 109 CLR 593; [1963] HCA 32; The Prothonotary v Collins (1985) 2 NSWLR 549; Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3; Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 referred to.

(iii) The pressure imposed on the second respondent not to exercise his right to have a civil court determine the alleged commercial dispute was improper. The Beth Din was seeking to prevent a corporation from having a potential dispute adjudicated in the only forum where the dispute was justiciable: [160]-[169], [180]-[186].

Attorney-General v Times Newspapers Ltd [1974] AC 273; Hillfinch Properties Ltd v Newark Investments Ltd [1981] The Times 9 (1 July 1981); Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41; Harkianakis v Skalkos (1997) 42 NSWLR 22; Greenberg v Greenberg 238 AD 2d 420 (1997); Bhagat v Global Custodians Ltd [2002] NSWCA 160; Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775 considered.

Per McColl JA (dissenting)

(iv) The evidence did not establish beyond reasonable doubt that the communications imposed improper pressure on the second respondent not to exercise his right to access a civil court such that they had, as a matter of practical reality, a tendency to interfere with the due course of justice. The appellants were merely seeking to ensure the second respondent’s compliance with Jewish law and his attendance at the Beth Din: [241]-[242], [262]-[283].

Witham v Holloway (1995) 183 CLR 525 at 534; [1995] HCA 3; John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; [1955] HCA 12 referred to.

In relation to Ground 3

Per Bathurst CJ and Beazley P

(v) The penalties imposed on the appellants were manifestly excessive having regard to the fact that: this was a first offence; the appellants’ conduct was not contumacious; there was little risk that the appellants would reoffend; and the appellants had suffered humiliation as a result of publicity: [198]-[200].

Judgment

1. BATHURST CJ and BEAZLEY P: On 14 December 2017, the primary judge, Sackar J, found the appellants guilty of two charges of criminal contempt on the basis that they had threatened the second respondent, Mr Reuven Barukh, with religious sanctions if he did not submit to the jurisdiction of the Sydney Beth Din, a religious court that administers Halacha, or Jewish law: Live Group Pty Ltd v Rabbi Ulman [2017] NSWSC 1759.

2. The sanctions had been threatened against Mr Barukh in the context of an alleged commercial dispute arising out of an agreement between the first respondent, Live Group Pty Ltd (Live Group), an Australian registered corporation, and SalesPort LLC (SalesPort), a Delaware registered company.

3. Mr Jesse Kuzecki, a director of SalesPort, had filed a claim with the Sydney Beth Din against Mr Barukh, Mr Barukh’s mother and sister, Live Group and another company. Mr Barukh’s mother was a director of Live Group. His sister had never had any involvement with the company or its associated entities.

4. Mr Kuzecki’s claim was particularised as being in respect of “Breach of Agreements; Service and Partnership Agreements & Fraudulent Use of Company Funds”. Mr Barukh’s position was that, at all times, the only business dealings between him and Mr Kuzecki were in their respective roles in the two corporate entities, Live Group and SalesPort respectively.

5. The jurisdiction of the Sydney Beth Din is exercised by the first, second and third appellants, who are Jewish Rabbis. The fourth appellant is the Registrar of the Beth Din, having been appointed to that position in October 2016. Prior to that, he was the Secretary, but also fulfilled the function of Registrar. It will be convenient to refer to the Beth Din and the appellants without distinguishing between them and without separately distinguishing the role of the fourth appellant unless necessary.

6. According to the appellants, the Beth Din has authority to determine civil disputes between observant Jews, its jurisdiction deriving from the interpretation of Jewish law by the Rabbis who constitute themselves as a Beth Din. In other words, “their ultimate authority comes from themselves in the sense that as a community of Dayan … they interpret as best they can … the Halachic law”.

7. Mr Barukh is an observant Jew who lives in Sydney. Mr Kuzecki is also Jewish and lives in either Israel or the United States, or possibly both. Jewish law, at least as administered by the Beth Din, does not recognise the existence of a separate corporate legal identity and, accordingly, does not recognise the existence of a corporate veil.

8. Upon receipt of Mr Kuzecki’s claim, the Beth Din sought to exercise its jurisdiction by issuing a summons to Mr Barukh, his mother and his sister. Mr Barukh refused to submit to the jurisdiction of the Beth Din. The appellants informed Mr Barukh that unless he acquiesced in the Beth Din process, he would be subject to a number of religious sanctions. The threats were contained in an email of 29 December 2016 and a letter of 28 February 2017.

9. On 9 February 2017, Live Group and Mr Barukh commenced proceedings in the Supreme Court of New South Wales, seeking declaratory and injunctive relief to restrain the Beth Din from hearing the dispute and from continuing to threaten the imposition of religious sanctions on Mr Barukh. Subsequently, the claim was amended to include a claim that the appellants, by threatening the sanctions, had committed a contempt of court.

10. The primary judge made declarations that, by sending the email and the letter, each of the appellants had committed a criminal contempt of court, as each communication “had a real and definite tendency to interfere with the administration of justice”. His Honour ordered that the appellants be permanently restrained from taking any steps in relation to the threat or imposition of sanctions for Mr Barukh’s failure to comply with the summons issued by the Beth Din, his failure to “recant or acquiesce” in the Beth Din process, or his failure to submit to the jurisdiction of the Beth Din.

11. By way of penalty, his Honour imposed a monetary penalty of $20,000 on the second appellant, Rabbi Gutnick, and a penalty of $10,000 on each of Rabbi Ulman, Rabbi Chriqui, and Rabbi Schlanger, the first, third and fourth appellants respectively. His Honour also made costs orders in favour of the respondents, including an order for indemnity costs for part of the proceedings: Live Group Pty Ltd v Rabbi Ulman [2018] NSWSC 393.

Issues on the appeal

12. By their amended notice of appeal, the appellants raised the following issues:

1. Whether the primary judge’s findings of contempt were those that were charged: appeal grounds 1(c), 1(d), 2(c), 2(d).

2. Whether the primary judge erred in finding the email of 29 December 2016 and the letter of 28 February 2017 placed improper pressure on Mr Barukh not to exercise his right to have a civil court determine the alleged commercial dispute and, accordingly, had a real and definite tendency to interfere with the administration of justice, such as to constitute a contempt of court: appeal grounds 1(a), 1(a1), 1(b), 2(a), 2(b).

3. Whether the primary judge erred in imposing penalties on the appellants: appeal ground 3.

4. Whether the primary judge erred in finding that the appellants should pay the respondents’ costs on an ordinary basis up to 14 July 2017, and, thereafter, on an indemnity basis: appeal ground 4.

Cross-appeal

13. The respondents cross-appealed, seeking, inter alia, the following orders:

“2   A declaration that a fair-minded lay observer might reasonably apprehend that the first, second, third and/or fourth appellants in their capacities as representatives of the Jewish Ecclesiastical Court known as the ‘Sydney Beth Din’ might not bring an impartial mind to the resolution of the question or questions required to be decided in respect of the Dispute.

3   An order that the appellants/cross-respondents be restrained from taking any step to adjudicate upon or arbitrate in respect of the Dispute.”

Notice of contention

14. The appellants filed a notice of contention in response to the cross-appeal, contending that the primary judge erred in finding that there were strong grounds for a finding of apprehended bias and in failing to find that the Beth Din’s conduct was consistent with the Halachic rules that applied to it.

Background

15. Live Group is a digital marketing company. In January 2016, it entered into an agreement with SalesPort whereby SalesPort was to assist Live Group with its social media marketing. The agreement contained the following dispute resolution clause:

“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 ...”

16. On 18 July 2016, Live Group terminated the agreement in accordance with the termination clause in the agreement.

17. In August or September 2016, at the request of one of his Israeli Rabbi colleagues, Rabbi Ulman met with Mr Kuzecki in Sydney. Rabbi Schlanger was present for part of the meeting. Mr Kuzecki informed Rabbi Ulman of his grievance with Mr Barukh and said that he wanted to proceed with a Din Torah in Sydney. A Din Torah was described in submissions as a final adjudication of a dispute according to Jewish law. Mr Kuzecki confirmed his intention to make a claim in an email dated 17 September 2016 to Rabbi Schlanger, into which Rabbi Ulman, amongst others, was copied. Mr Kuzecki stated in his email that the Sydney Beth Din had agreed to accept and conduct the “financial beth din ... under the Arbitration act”.

18. Further communications followed, including an email dated 22 September 2016 from Mr Kuzecki to Rabbi Schlanger stating that his lawyer wanted to speak to the Beth Din’s lawyer, and that “we are looking to have the Beth Din decision Binding”. In another email of the same day, into which Rabbi Ulman was copied, Mr Kuzecki stated that his lawyer:

“… 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.”

19. On 27 September 2016, Rabbi Gutnick emailed Mr Kuzecki advising him of the arbitration process that is conducted within the Beth Din, stating:

“The Arbitration agreement would have to be drawn up in a manner that would be binding in Accordance with the Commercial Arbitration Act NSW 2010, so that you could enforce it. lt must carefully and completely delineate the paramaters of the dispute and the matters that require determination by the Judges.

I have attached a sample Din Torah agreement that incorporates the Arbitration Act. However it is almost certain that your barrister will want a much more detailed document. That is fine provided he incorporates everything in this shorter one - in particular clauses 1,4,5 and 6, and we get to look at it before it is finalised.”

20. The sample arbitration agreement attached was in the following terms:

“Whereas a dispute has arisen in relation to Breach of Agreements; Service and Partnership Agreements & Fraudulent Use of Company Funds, and the parties are desirous of resolving this dispute via binding arbitration in the manner of a Din Torah

l/We agree to the submission of this matter, including all claims and counterclaims arising in respect of it, to the Sydney Beth Din (Beth Din) for a binding arbitration under the Arbitration Act under the following terms:

1.   The Beth Din’s rules of procedure are those of Jewish law.

2.   Each party to this matter shall have by signing this document, indicated their assent to an arbitration under these terms.

3.   The Beth Din may continue the arbitration and conclude it ex-parte if any party fails, after receiving reasonable notice, to attend any hearing.

4.   The Beth Din has the power to make orders including exparte orders including orders for discovery and powers of subpoena, from the date upon which all parties assent to the terms of this agreement until such time as the Beth Din has completed its work in Jewish law.

5.   The Beth Din has the power to make orders both as to its own costs and as to the costs incurred by any party in participating, bringing or defending any claim or counterclaim. The Beth Din may make orders as to security for costs and in respect of claims.

6.   The Beth Din shall decide the matter under Jewish Law in a manner of pshoro or pshoro kroivo lodin, incorporating such other laws as Jewish law deems appropriate.

7.   The Beth Din shall comprise one Dayan (Judge)/ three (Dayanim) Judges.”

21. Mr Kuzecki signed the sample arbitration agreement and dated it 5 October 2016. The following day, on 6 October 2016, Mr Kuzecki filed a claim in the Beth Din, naming himself as the plaintiff and Mr Barukh, Mr Barukh’s mother and sister, Live Group and another company as the defendants. As stated above, he particularised his claim as: “Breach of Agreements: Service and Partnership Agreements & Fraudulent Use of Company Funds”. No monetary sum was claimed. The claim form bore the initials “JK”.

22. On 14 December 2016, Rabbi Schlanger, on behalf of the Sydney Beth Din, issued the “First Summons to a Din Torah” (the Beth Din summons). Mr Kuzecki was named as the plaintiff and Mr Barukh and Mr Barukh’s mother and sister were named as the defendants.

23. The Beth Din summons stated:

“Claim:

The plaintiff seeks a Din Torah with the defendant and the plaintiff claims damages up to the amount of $5 million dollars for breach of service and partnership agreements and Fraudulent Use of Company Funds.

The Din Torah will take place in front of the judges of the Sydney Beth Din in person and via Skype for those unable to attend in person. Initially there will be a directions hearing in front of one judge to make the appropriate arrangements for hearing the matter including the signing of an arbitration agreement. At that time orders will be issued if requested in relation to discovery or any other appropriate matters. The defendant will be entitled to make application for summary dismissal at that time.

Please email the secretary of the Beth Din [email protected] with your availability and skype contact details by 5pm Friday 16th December 2016

By Order of The Beth Din”

24. Mr Barukh responded to the Beth Din summons by a letter dated 20 December 2016 from his legal representatives, Lazarus Legal Group, to Rabbi Schlanger. Lazarus Legal Group advised that Mr Barukh was “extremely perturbed and upset” that Mr Kuzecki had brought “such bold and unfounded allegations before the Beth Din”. They also advised that Mr Barukh’s view was that the only reason that Mr Kuzecki had referred “this alleged dispute” to the Beth Din was because Mr Kuzecki “would not have any reasonable prospect of succeeding on such unfounded and misrepresented claims in any civil court in any country”.

25. The letter continued that a hearing before the Beth Din “may [not] take place in the absence of either of the parties” and that “Mr Barukh has no intention of appearing at a Din Torah” with Mr Kuzecki because he did not believe that the Beth Din was the appropriate forum in which Mr Kuzecki’s grievances should be aired. Complaint was also made that Mr Barukh’s mother, who was not well, and sister had been included in the summons, neither having had “any dealings with Mr Barukh’s business affairs”.

26. Lazarus Legal Group requested that the Beth Din:

“… withdraw the First Summons to a Din Torah on the basis that it is … based on claims by [Mr Kuzecki] that are unsubstantiated and misguided.”

27. They invited Mr Kuzecki to bring proceedings in a civil court in Australia if he considered that he had “a proper claim” against Mr Barukh.

28. Rabbi Schlanger responded by email on 22 December 2016, stating:

“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 summons.

…

3.   Notwithstanding the above, in this particular case, your client has signed an agreement (enclosed) which contains a conflict resolution clause referring all disputes to Rabbi Moshe Gutnick who is one of the heads of the Beth Din. Rabbi Gutnick would prefer to have the matter heard by the whole Beth Din and believes this is the fairest and best way to proceed, hence the summons; but if the involvement of the entire Beth Din is for whatever reason causing concern, Rabbi Gutnick is prepared to hear the matter himself.”

29. Rabbi Schlanger asked that Mr Barukh “give us sometime next week for a directions hearing” with the intention of the matter being heard in February 2017.

30. Lazarus Legal Group responded on the same day, again stating that Mr Barukh had no intention of appearing and further stating that this was “not a matter that can be adjudicated upon by the Beth Din”.

31. On 29 December 2016, Rabbi Schlanger wrote to Lazarus Legal Group. It is necessary to set out the email in full, as it identifies the sanctions to be imposed on Mr Barukh if he did not respond to the Beth Din summons and is the letter that is the subject of charge 2 in the statement of charge:

“Dear Mr Lazarus

The Beth Din has asked me to convey to you the following:

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. This is especially the case as your client has specifically nominated Rabbi Gutnick from the Beth Din to adjudicate any dispute, such nomination having also standing in civil law. 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.

Taking into account your return from leave only on January 16, 2017 please take note of the following and please inform your client accordingly.

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), 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.

If your client believes the plaintiff’s case is without merit he will have the opportunity to seek dismissal on whatever grounds he sees fit at the first directions hearing. Besides your client’s obligation in Jewish Law the Beth Din has prima facie a signed agreement - which you have not contested - binding your client to Rabbinic Arbitration and the Beth Din process. As such The Beth Din is not prepared to entertain any further pleas on this matter other than before it at that first directions hearing.

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.”

32. Lazarus Legal Group responded on 27 January 2017 as follows:

“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 injunctive relief and/or damages for economic and reputational loss.”

33. Having received no response to that letter, Lazarus Legal Group wrote again on 30 January 2017, again pointing out that the Beth Din summons was “entirely misconceived” and that unless an undertaking to cease to take any further steps in relation to the summons was received by 1 February 2017, they would take such further steps as they were advised, including the issuing of proceedings in the Supreme Court.

34. Rabbi Schlanger emailed Lazarus Legal on 31 January 2017, stating, relevantly:

“3.   … 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 defendant 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.

Of course we live in a free country and anyone can refuse to respond or attend a Beth Din. However such an action will invoke an inevitable religious consequence. The party will be found in contempt of the Beth Din and this will usually mean that the party will not be allowed to be called to the Torah or counted to a Minyan. This is a simple matter of religious law cause and effect ...

The individual in contempt of religious law has made a choice to exclude himself from the religious framework … and that is his choice …

From the perspective of civil law the Beth Din acts as a binding arbitrator whose decision is then upheld by the civil courts …

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

…

5.   In summation Jewish Law requires your client to attend a Din Torah. You are open to file any motion you wish with the Beth Din in that regard, and after giving the plaintiff the option to respond the Beth Din will rule. However, as stated above, refusing to attend a Din Torah is not an option for someone who wishes to remain within the framework of Orthodox Jewry.”

35. As noted earlier, the respondents commenced proceedings in the Supreme Court on 9 February 2017, seeking declaratory and injunctive relief on both an interlocutory and final basis.

36. On 14 February 2017, the appellants offered to give certain undertakings in order to avoid an interlocutory hearing and to give the parties time to prepare for the final hearing. On 15 February 2017, directions were given and the following undertakings were noted:

“The Court NOTES that the first, second, third and fourth defendants undertake to the Court that they will not, without first giving 21 days’ notice of their intention to do so in writing to the plaintiffs’ solicitors:

A.   take any step to adjudicate upon or arbitrate in respect of the Dispute or the Agreement (as those terms are defined in the Summons);

B.   institute proceedings or take any step which would involve one or more of the religious sanctions referred to in the email from the fourth defendant on behalf of the Sydney Beth Din to the plaintiffs’ solicitors dated 29 December 2016 (a copy of which is behind tab 11 of Exhibit RB-1 to the affidavit of Reuven Barukh sworn 9 February 2017).”

37. On 28 February 2017, the appellants’ solicitors, Schweizer Kobras, wrote to Lazarus Legal Group. As this letter is the subject of charge 6 in the statement of charge, it is also necessary to set it out in full:

“LIVE GROUP PTY LTD V RABBI ULMAN & ORS SUPREME COURT OF NSW PROCEEDINGS NO. 2017/42068

We refer to the undertakings given to the Supreme Court in this matter on behalf of the first to fourth defendants on 15 February 2017.

We are hereby 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) and sent at 12:49 pm.

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.

If the plaintiff wishes to be heard in the Beth Din against the imposition of these sanctions then he may make an application to the Beth Din. In that case, the plaintiff should communicate with the secretary of the Beth Din to make an appointment to be heard.

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.”

38. Although that was the end of the correspondence between the parties relevant to the primary judge’s findings in respect of contempt, the appellants also relied upon the following affidavit evidence of Rabbi Gutnick of 3 July 2017, as representing their position in relation to the imposition of sanctions. Rabbi Gutnick referred to the undertakings given on 15 February 2017 and continued:

“5.   In the result, there are at present no Halachic sanctions in force against any of the Present Plaintiffs, whether the Threatened Sanctions or otherwise.

6.   However, if when the Supreme Court Proceedings finally conclude there is no legal prohibition against or legal impediment to the Sydney Beth Din continuing to deal with the Underlying Dispute according to Halacha, then - assuming the continued existence of the Underlying Dispute and the continued refusal by the Present Plaintiffs of their Halachic obligation to answer the Sydney Beth Din’s summons - it is likely that the Sydney Beth Din will impose against the Present Plaintiffs the sanctions set out in the email of 29 December 2016 until they comply with those obligations.

…

8.   If as a result of any findings or orders that are made by this Court in the Supreme Court Proceedings there is a legal prohibition against or legal impediment to the Sydney Beth Din continuing to deal with the Underlying Dispute, then the Sydney Beth Din would not impose any of the Threatened Sanctions, or any other sanctions, against the Present Plaintiffs. The position of the Sydney Beth Din in that event would be that there was then no dispute before it that it could hear, and it would therefore take all such steps as were necessary to withdraw the summons it has issued to the Present Plaintiffs. It is axiomatic, and in accordance with Halacha, that the Sydney Beth Din would obey such an order of this Court, in the spirit as well as the letter.”

39. Rabbi Gutnick also deposed that no sanctions had been threatened against Mr Barukh for commencing or maintaining the proceedings in the Supreme Court.

Basis of the Beth Din’s authority and the Din Torah process

40. The basis of the Beth Din’s authority, as the appellants contended, was explained by Rabbi Gutnick as follows:

“It is a fundamental tenet of Judaism that all Jews must seek resolution of their conflicts within the Halachic system rather than in the secular courts ... regardless of any arbitration agreement that may ... have been signed by the parties.”

41. Rabbi Gutnick explained that this obligation was “binding on every member of the Jewish faith” and that “[n]o person who professes to be of the Jewish faith can fail to comply [with] this obligation and still be true to that faith”. He stated that there were “significant religious sanctions” associated with a refusal to comply with this obligation and that the Sydney Beth Din, as a formal Beth Din, had “the power under Halacha to apply religious sanctions”. Further, he explained that a dispute “is usually brought before a Beth Din by the Beth Din issuing a summons to the parties who are to be involved in the hearing of the dispute”.

42. Rabbi Gutnick tendered an English restatement of the prohibition against settling disputes in “gentile courts”, as contained in s 4, ch 26 of the Code of Jewish Law. The introduction provides as follows:

“A beth din system assumes that all disputes will be adjudicated in the beth din. Even where there is no organized beth din system, the prohibition against adjudicating disputes in the non-Jewish courts applies.

Rambam stated the law as follows:

Whoever submits his dispute to Gentiles and to their courts, even if their laws are similar to the laws of Israel, such a person is considered a wicked person. It is as if he had reviled and blasphemed and rebelled against the law of our teacher Moses.”

The restatement continues as follows:

“It is prohibited to invoke the jurisdiction of the Gentile courts to settle a dispute

The word prohibited is intentionally employed here, since this is a jurisdictional defect per se. Employing Gentile courts rejects the entire Torah beth din system, organized or not …

The prohibition applies even if both parties agree to use the Gentile courts, and even if they agreed by kinyan. The prohibition applies even if they swore to go to the Gentile courts. The prohibition applies even if it was included in an agreement between the parties, effected by kinyan, regarding other matters, such as going into a partnership together.”(footnotes omitted)

43. In relation to the Din Torah process, the appellants explained that the reference in the Beth Din summons to Mr Barukh’s entitlement to apply for summary dismissal referred to his entitlement under the procedures of the Beth Din to make an application at the directions hearing for the claim before the Beth Din to be summarily dismissed. Rabbi Gutnick gave evidence that in addition to Mr Barukh’s entitlement to make such an application, which would have afforded him an opportunity to be heard as to whether there was merit to Mr Kuzecki’s claim, Mr Barukh could have sought an order that the dispute be decided by a different Beth Din at the directions hearing.

44. The respondents challenged this, stating that the purpose of the directions hearing was to make arrangements for the hearing of the matter, including the signing of an arbitration agreement.

45. Mr Barukh also had a different view to that espoused by the appellants as to the authority of the Beth Din. He explained that there was no management or board to whom the Rabbis were required to report and that they were not elected by the community. He stated that Rabbi Ulman, Rabbi Gutnick and Rabbi Chriqui belonged to a particular Jewish sect, the Chabad Lubavitch, and that they controlled the Sydney Beth Din, which seeks to impose its views on the entire Sydney Jewish community.

46. Mr Barukh did not accept that the Sydney Beth Din had international recognition in relation to civil or financial disputes or that their decisions would necessarily be accepted in another Beth Din or in a court of Israel. Mr Barukh denied Rabbi Gutnick’s suggestion that Rabbis of different sects throughout the world would sit together on the same Beth Din. Mr Barukh stated that many Jewish Orthodox sects isolate themselves from each other and would not sit with Rabbis of a different sect on a Beth Din.

47. Mr Barukh did not agree that the authority of the Beth Din extended to any dispute that might have arisen out of the contract between Live Group and SalesPort. He accepted that there were issues over which the Beth Din had jurisdiction, but stated that these were personal matters such as divorce, child abuse and women’s rights in marriage. He stated that the Beth Din did not have jurisdiction over a dispute between corporations. As he stated in his affidavit evidence:

“Australian Corporations Law governs the conduct and legal obligations of Live Group. Live Group cannot be held responsible or liable for any deemed halachic obligation as the Beth Din and [the appellants] are seeking to do, by summonsing myself and my mother, the only Directors of Live Group, as well as my sister who lives in Switzerland and has never had any involvement in Live Group or its associated entities.”

48. According to Mr Barukh, Live Group’s business matters could not be considered to be part of the core Jewish religious beliefs and were beyond the reach of the Beth Din. Mr Barukh further pointed out that the dispute was between two registered companies and that directors are not ordinarily personally liable for the debts and obligations of the company.

49. Mr Barukh also contested the appellants’ assertion that all observant Jews were required to have their disputes determined by the Beth Din. By way of example, he referred to a dispute between Rabbi Gutnick’s brother and sister in respect of which Rabbi Gutnick’s brother had resisted the dispute being determined by a rabbinical court in Israel, invoking “the famous Jewish teaching ‘dina demalchuta dina’, which means ‘the law of the land is the law’”.

50. Mr Barukh was not cross-examined and his evidence was therefore unchallenged. Rabbi Gutnick was cross-examined and the primary judge did not accept certain aspects of his evidence as identified later in these reasons.

Impact of sanctions on Mr Barukh

51. Mr Barukh gave evidence of the impact that the sanctions would have on him if they were imposed. He stated that they would have severe consequences on him not only personally, but also in his capacity as director and CEO of Live Group and the other associated entities of which he was director and CEO. This in turn would impact upon persons employed by those entities and customers throughout Australia. Mr Barukh also stated that he was extremely concerned that any such sanctions would impact upon his good name and reputation, which he has built up over many years in the business world.

52. The two matters that concerned him most at a personal level were that, if the sanctions were imposed: he would be stripped of his birthright as a born Jew to be counted as part of a minyan; and he would not be permitted to say a Jewish prayer at the Torah on the anniversary of his father’s death each year. Mr Barukh explained that a minyan was a quorum of 10 Jewish men above the age of 13 entitled to be counted for the purposes of partaking in any form of Jewish prayer.

The Supreme Court proceedings

53. The respondents’ summons filed in the Supreme Court on 9 February 2017 was brought against the four appellants, SalesPort and Mr Kuzecki. The summons was amended on 12 April 2017, in which the respondents no longer pursued relief against Mr Kuzecki or SalesPort. It was further amended on 14 July 2017.

54. Relevantly, the respondents in their further amended summons:

1. Challenged the jurisdiction of the appellants to arbitrate or otherwise adjudicate upon the alleged commercial dispute referred to in the Beth Din summons.

2. Challenged the conduct of any such proceedings on the basis of impartiality, lack of independence and/or apprehended bias on the part of Rabbi Ulman, Rabbi Gutnick and/or Rabbi Chriqui.

3. Challenged the jurisdiction of the appellants to arbitrate in respect of the agreement entered into between Live Group and SalesPort.

4. Sought injunctive relief to restrain the appellants from taking any step to adjudicate upon or arbitrate in respect of the alleged commercial dispute or the agreement between Live Group and SalesPort.

5. Sought injunctive relief to restrain the appellants from taking any step that would involve the imposition of any of the religious sanctions referred to in the email of 29 December 2016.

6. Sought declarations:

1. that the agreement between Live Group and SalesPort was not an arbitration agreement with the meaning of the Commercial Arbitration Act 2010 (NSW) or the International Arbitration Act 1974 (Cth); and

2. that the appellants in their capacity as representatives of the Sydney Beth Din had no jurisdiction to conduct any arbitration proceedings under either the Commercial Arbitration Act or the International Arbitration Act and that any award issued by the Sydney Beth Din in respect of the alleged commercial dispute under either Act was of no force or effect.

7. Sought a declaration that the pressure the appellants had placed on Mr Barukh to comply with their demands to respond to the Beth Din summons constituted and continued to constitute a contempt of court.

55. On 11 August 2017, the respondents filed the statement of charge in relation to the contempt allegations. The primary judge upheld charge 2 and charge 6, which were in the following terms:

“You are charged … with contempt of Court in that:

…

2   On 29 December 2016, you, in your capacities as representatives of the Sydney Beth Din, after having received further notification from [the respondents] that they considered the dispute the subject of the Sydney Beth Summons 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 [Mr Barukh]:

‘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 [Mr Barukh] ...

Unless by 5pm January 26 2017 the Beth Din hears from you on behalf of your client [Mr Barukh] 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.

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 [Mr Barukh] 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 respondents’ 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.

…

6   On 28 February 2017, after [the respondents] 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 [Mr Barukh]:

‘[U]nless [Mr Barukh] 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 appellants] to Lazarus Legal Group [solicitors for the respondents].”

Primary judge’s findings on contempt

56. The primary judge held that the appellants were guilty of criminal contempt in respect of charges 2 and 6. Before referring to his Honour’s findings in respect of those charges, it is necessary to refer first to certain of his Honour’s general observations.

General matters

57. In considering the nature of the criminal contempt that had been charged, the primary judge noted, at [245], that it was important that Mr Barukh had not commenced nor threatened to commence proceedings in a civil court in respect of the alleged commercial dispute arising out of the agreement between Live Group and SalesPort. His Honour stated that the “only relevant proceedings are the proceedings before this Court, concerned with apprehension of bias and contempt of Court”.

58. His Honour continued, at [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 Australia Pty Ltd v Gage [2017] NSWSC 1046] 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.”

59. His Honour then considered, at [251]-[254], the “pervasive error” that the appellants alleged infected the respondents’ contempt of court claim, namely, that the respondents conflated “the threat of sanctions not to attend the Beth Din with the threat of sanctions for bringing proceedings in a secular court”. His Honour explained the appellants’ argument as follows:

“[The appellants] 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 … However, counsel for [the appellants] 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 …”

60. His Honour then summarised the evidence as follows:

“[252]   … 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’ … and Rabbi Ulman agreed submitting to the jurisdiction of the Beth Din was ‘at odds’ with what Mr Barukh was seeking in these proceedings …

[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 ... 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 …”

61. His Honour continued:

“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.”

62. His Honour concluded, at [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.”

63. His Honour also made a number of findings about the impact of the threats upon Mr Barukh and what the appellants would have known would be the effect of those threats. His Honour found, at [256], that Mr Barukh and his family were well known to Rabbi Ulman, Rabbi Gutnick and Rabbi Chriqui and that the Rabbis would have appreciated that the sanctions threatened in their communications would have had expected and/or inevitable consequences for Mr Barukh and his family.

64. His Honour also found, at [267], that the threats were inherently calculated to exert pressure on Mr Barukh and that they had had a serious impact on him, including his emotional and mental welfare. His Honour found that the appellants appreciated that Mr Barukh was vulnerable to threats of “serious” or “significant” sanctions which would effectively strip him of his identity as a Jew, especially as he was no longer permitted to be counted in a minyan.

Findings in respect of charge 2

65. His Honour, at [265], was satisfied beyond reasonable doubt that the email of 29 December 2016 was conduct that placed:

“… 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.”

66. Relevantly, his Honour made the following findings:

“[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 ...

…

[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 not the appropriate place for the determination of commercial disputes between Jews, or for that matter gentiles.”

Findings in respect of charge 6

67. His Honour observed, at [283], that the letter of 28 February 2017 reasserted the authority of the Beth Din and again made it abundantly clear that unless Mr Barukh complied with the Beth Din summons, religious sanctions would follow, as had been stated in the email of 29 December 2016. His Honour then stated, at [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.”

68. Notwithstanding the contents of the letter of 28 February 2017, which his Honour, at [285], considered could not be construed “as maintaining the threat by reason of Mr Barukh having commenced [the Supreme Court proceedings]”, his Honour nonetheless considered that it was the appellants’ “clear intention” to proceed against Mr Barukh by imposing sanctions for his failure to attend upon the Beth Din.

69. His Honour concluded, at [286], that the maintenance of that conduct had “the tendency to interfere with the administration of justice”. According to his Honour:

“The threats continue to maintain the assertion [Mr Barukh] 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.”

Legal principles applicable to criminal contempt

70. The primary judge dealt with the principles of criminal contempt at [88]ff. The parties accepted that his Honour correctly stated the relevant principles. As his Honour observed, at [88], the law of contempt is “grounded in the judicially recognised right of unimpeded access to the courts”: see Attorney-General v Times Newspapers Ltd [1974] AC 273 at 307-309; Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242 at 249-250.

71. The authorities recognise a distinction between criminal and civil contempt. As the High Court explained in Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 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.”

72. It is also accepted authority that there will be an interference with the course of justice where improper pressure is placed upon a litigant. In this regard, the distinction between proper and improper pressure is important. In Harkianakis v Skalkos (1997) 42 NSWLR 22, Mason P summarised, at 27-30, the general principles to be applied where improper pressure is exerted on a litigant. His Honour considered, at 30, the distinction between proper and improper pressure:

“In punishing certain types of interference with litigants, the law is concerned to distinguish between proper and improper pressure: see Meissner v The Queen (1995) 184 CLR 132 … 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 … or to commence a prosecution … could not constitute a contempt. Yet it clearly may.”

73. In Bhagat v Global Custodians Ltd [2002] NSWCA 160, Spigelman CJ observed:

“[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 …”

74. Spigelman CJ drew a distinction, at [49], between the operation of the law of contempt with respect to public communications and private communications. In relation to the former, the law was required to balance “the public interest in freedom of speech against the public interest in the administration of justice”. In such cases, his Honour considered that the element of interference with the administration of justice was mediated by the response of the community, not just the parties. However, in the case of a private communication between parties to legal proceedings, his Honour stated that the vulnerability of a party, in terms of, for example, age and means, could be material in determining whether pressure was improper. In this regard, his Honour did not consider it necessary to choose between an objective and a subjective test.

75. In the same case, Ipp AJA referred, at [53], to what he had said in Resolute Ltd v Warnes [2000] WASCA 359 at [19], in the context of a public publication:

“In the circumstances, a primary question is whether the published material has, as a matter of practical reality, a real (or clear) and definite tendency to interfere with the course of justice. This question depends on an objective assessment of the relevant material. The Court must ‘ascertain whether the publication is such as may affect the minds of reasonable men’: Fry v Bray [1959] 1 FLR 366 at 376.”

76. In the context of a private communication, his Honour added, at [54], his agreement with Spigelman CJ, stating that:

“… at 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.”

77. There is another distinction to be drawn, which was of particular relevance to the appellants’ argument, namely, the distinction between a contempt arising from conduct that interferes with the administration of justice in a particular case and interference with the administration of justice generally. In the former case, no contempt will have been committed unless proceedings are pending: see James v Robinson (1963) 109 CLR 593; [1963] HCA 32 at 602-607. In The Prothonotary v Collins (1985) 2 NSWLR 549, McHugh JA observed, 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.”

See also Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 per Ward CJ in Eq at [130]ff.

78. The primary judge also considered a number of analogous cases that have dealt with instances of improper pressure on a litigant, that being the allegation in this case. No issue was taken with his Honour’s review of these authorities.

79. His Honour first considered what he described as the most relevant authority, Hillfinch Properties Ltd v Newark Investments Ltd [1981] The Times 9 (1 July 1981). In that case, the parties were companies owned and controlled by persons of the Jewish faith. The defendant issued a petition to wind up the plaintiff, whose directors had refused to repay an alleged, disputed loan. The plaintiff brought an action to restrain the winding up. The defendant sought an order that the plaintiff’s action be dismissed for contempt of court because they had approached a rabbinical court and secured that the Rabbis issue to the defendant threats of excommunication unless they withdrew their winding up petition. The question was whether those threats constituted a contempt of court.

80. It was reported that 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”.

81. However, Slade J considered it unnecessary and preferable not to express any final conclusion on the question without the presence of the Rabbis or the Attorney-General as a guardian of the public interest.

82. The primary judge also considered the more recent decision of Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775. In that case, the defendant sought interim orders preventing the continuance of what it alleged were “serious continuing contempts of court” until the final hearing of its notice of motion, in which it sought declarations that certain parties, including the plaintiffs, were in contempt of court. The defendant alleged that the plaintiffs had caused the controller of the defendant to be excommunicated from the Jewish faith, as punishment for the defendant pursuing its remedies before the Supreme Court of New South Wales.

83. Young CJ in Eq articulated the question in issue as being “how far, if at all, it is a contempt to put pressure on a party or witness to litigation by threatening a religious sanction if that person continues with the litigation”. His Honour observed, at [35], that “[i]t is clear on the authorities that litigants are not protected against all pressures, public or private, when they mount the stage of litigation”. Nonetheless, his Honour stated, at [31], that:

“… 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.”

84. Young CJ in Eq noted, at [32], that:

“In the instant case, it must be remembered that the pressure about excommunication commenced before the proceedings started and then were reactivated, possibly by way of revenge, after the case proper was finished.”

85. In the result, his Honour considered it unnecessary to make any orders, the application before him being interlocutory.

First issue on the appeal

Whether the primary judge’s findings of contempt were those that were charged: appeal grounds 1(c), 1(d), 2(c), 2(d)

Parties’ submissions

86. The appellants raised two issues in relation to the first issue on the appeal. The first was whether contempt was in fact alleged in charges 2 and 6. The second was whether the contempt found by the primary judge was materially different from the contempt charged, such that it cannot stand: see Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245; [1981] HCA 35 at 257; Inghams EnterprisesPty Ltd v Timania Pty Ltd (2005) 221 ALR 823; [2005] FCAFC 155 at [32].

Charge 2: email of 29 December 2016

87. The appellants submitted that no contempt was alleged in charge 2. Rather, they contended that the alleged contempt arising out of the conduct referred to in charge 2, being the threat to impose sanctions as contained in the email of 29 December 2016, was charged in charges 3, 4 and 5. Accordingly, the appellants argued that his Honour erred in finding them guilty of contempt on the basis that charge 2 had been proved, in circumstances where he dismissed charges 3, 4, and 5. His Honour did so on the basis that those charges essentially duplicated charge 2.

88. To understand the appellants’ submissions and, indeed, the case as it was run below, it is necessary to set out charges 3, 4 and 5.

“3   The statements made by you as representatives of the Sydney Beth Din set out in [charges 1 and 2] interfered or attempted to interfere with the rights of [the respondents] to have unhindered access to any constitutionally established court of civil jurisdiction in Australia for the determination of:

a.   the alleged dispute between [the respondents] and [SalesPort] and [Mr Kuzecki] as referred to in the Summons dated 14 December 2016 issued by the Sydney Beth Din; and

b.   [the respondents’] 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 respondents] and [SalesPort] and [Mr Kuzecki].

4   Further, the statements made by you as representatives of the Sydney Beth Din set out in [charges 1 and 2] were calculated to intimidate and apply pressure upon [Mr Barukh] 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).

5   The interference or attempted interference by you and the pressure applied by you referred to in [charges 3 and 4] 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.”

89. The appellants accepted that the proceedings below had been conducted on the basis that charge 2 was to be read in conjunction with charges 3, 4 and 5, and submitted that that was the only way any meaningful content could be given to charge 2. They submitted that charge 2, when read with charges 3, 4 and 5, involved an allegation of interference with the administration of justice in a particular case, which, on their submissions, had not been made out.

90. They submitted that the primary judge erred in dealing with charge 2 as involving an allegation of interference with the administration of justice generally because first, no such contempt had been charged; and secondly, the email of 29 December 2016 had been communicated privately, such that the only person who could have been affected by it was Mr Barukh. The appellants referred, by way of comparison, to the contempt found in Attorney-General v Times Newspapers at 295 and Harkianakis v Skalkos at 28, where public communications were involved.

91. The appellants also submitted that there was no “real risk” that the conduct particularised in charge 2 had a tendency to interfere with the course of justice in any particular case. They pointed out that neither of the cases referred to in charge 3 was pending or imminent at the time the email of 29 December 2016 was sent to Mr Barukh. The first time any reference was made to the fact that Mr Barukh was proposing to commence legal proceedings was in Lazarus Legal Group’s letter of 27 January 2017, when reference was made to commencing proceedings against the Beth Din. The appellants pointed out, as the primary judge recognised, that there was no realistic possibility that Mr Barukh would commence proceedings in respect of the alleged commercial dispute between Live Group and SalesPort.

92. The appellants further submitted that if what his Honour had in mind were proceedings other than those alleged in charge 3, then: such a finding was outside the particulars of the charge; was made in the absence of any evidence that there was a real risk that the content or sending of the email was likely to or did deter or prevent Mr Barukh from bringing other unidentified proceedings; and was too abstract and theoretical to have any practical reality: see John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; [1955] HCA 12 at 372.

93. The respondents agreed that the contempt proceedings had been conducted before the primary judge on the basis that the general allegation of contempt was made specific by the allegation in charge 2 and that the “particular vices” of the conduct the subject of charge 2 were further spelled out in charges 3, 4 and 5. They contended, however, that charge 2 was itself sufficient and complete to maintain a finding of contempt.

94. The respondents denied that they had prosecuted the case solely on the basis of an interference with the administration of justice in a particular case. Although as at 29 December 2016, Mr Barukh had not commenced, nor indicated an intention to commence, any legal proceedings, the respondents had invoked, at a general level, their right to have the alleged commercial dispute determined by a civil court. They submitted that this was the case they had brought against the appellants.

95. The respondents submitted that his Honour had correctly understood their case when, at [270]-[271], his Honour “focused on the threat to the authority of the Court as the ultimate decision maker”. The respondents further submitted that although the threat of sanctions had been contained in a private communication, had they been imposed, they would have manifested in “humiliating and potentially damaging public consequences” for Mr Barukh.

Charge 6: letter of 28 February 2017

96. The appellants submitted that, like charge 2, charge 6 did not contain an allegation of contempt. Rather, it referred only to the content and sending of the letter of 28 February 2017. They submitted that the case below had been conducted on the basis that charge 6 was only meaningful when read in conjunction with charge 9, which was in the following terms:

“9 Notwithstanding your undertakings to the Court to not take any steps to impose any sanctions against [the respondents] until further order, the threats referred to in [charge 6], 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 [Mr Barukh] 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.”

97. The primary judge held, at [295], that charge 9 failed. It followed, on the appellants’ submissions, that charge 6 could not have been made out and ought to have been dismissed.

98. The appellants submitted that the primary judge failed to identify any proceedings that may have been interfered with by the sending of the letter of 28 February 2017. They contended that the only proceedings that were properly the subject of charge 6 were the proceedings before his Honour and that the letter of 28 February 2017 did not have a tendency to interfere with those proceedings.

99. The appellants submitted that the letter was not sent with a view to deterring or preventing Mr Barukh from continuing with the proceedings before the primary judge. They pointed out that this had been accepted by the primary judge at [284]-[285], and that, at the very least, his Honour did not make an express finding that the letter was intended to deter or prevent Mr Barukh from continuing the proceedings he had commenced in the Supreme Court.

100. The appellants submitted that the letter of 28 February 2017, when read in conjunction with a second letter enclosed in their email of that date, was properly construed as an offer to cooperate. The second letter attached proposed short minutes of order for a directions hearing listed for 1 March 2017. In essence, the short minutes proposed orders in relation to the filing of evidence.

101. The appellants submitted that if his Honour’s finding at [284]-[286] was that the letter of 28 February 2017 had the tendency to interfere with the administration of justice generally, that finding was not open to his Honour as it was not the contempt charged.

102. The respondents did not challenge the dismissal of charge 9. However, they submitted that, like charge 2, charge 6 could stand on its own. They submitted that as charge 6 referred to the making of a threat of sanctions in a specified factual context, namely, the commencement of the proceedings before the primary judge, the primary judge did not err in considering whether the threat made in that context represented a continuation of the sanctions originally threatened on 29 December 2016, and whether that conduct tended to interfere with the administration of justice generally.

103. The respondents submitted that the primary judge did not err in interpreting the letter of 28 February 2017 as a continued assertion of the threat of sanctions and in rejecting the appellants’ submission that the letter and the proposed short minutes of order merely constituted an offer to cooperate.

Consideration

104. The first issue for determination is whether the primary judge’s findings of contempt were those that were charged.

105. It is well established that a person should only be found guilty of contempt if the specific charge, to which the alleged contemnor has had an opportunity to respond, has been proved beyond reasonable doubt: see Coward v Stapleton (1953) 90 CLR 573; [1953] HCA 48 at 579-580.

106. Coward v Stapleton was concerned with the question whether, before a person is committed for contempt, the person must be informed of the specific offence alleged and be given the opportunity to answer that charge. In respect of the former, the Court (Williams ACJ, Kitto and Taylor JJ) stated, at 579-580, that:

“… it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him: In re Pollard; R. v. Foster; Ex parte Isaacs. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations ...”

Their Honours observed that this principle rested on “accepted notions of elementary justice” and, accordingly, “must be rigorously insisted upon”.

107. This principle was approved in Lane v Registrar of Supreme Court of New South Wales, although in that case, it was held that the finding of contempt could not stand in circumstances where the Court had relied on matters not alleged in the charges, the charges were not amended to reflect the new basis on which the appellant’s convictions rested and the formal order made was that the appellant was guilty of the charges as set out in the statement of charge.

108. In Inghams Enterprises v Timania, the Court (Tamberlin, North and Dowsett JJ) summarised, at [32], the relevant legal principles to be applied in relation to the formulation of a statement of charge. Relevantly, their Honours stated as follows:

“(b)   parties accused of contempt are entitled to know the gist or substance of the charges against them: Coward v Stapleton (1953) 90 CLR 573 at 579–80 per Williams ACJ, Kitto and Taylor JJ;

(c)   where there is a statement of charge, the gist or substance of the allegations must be contained within the statement of charge and any particulars, and any deficiency cannot be remedies by resort to affidavit evidence: Carew Reid v Carew Corp Pty Ltd (unreported, WASC, Full Court, No 5 of 1993, 23 April 1993) …; Harmsworth v Harmsworth [1987] 1 WLR 1676 at 1683; [1987] 3 All ER 816 at 821; Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 at [31] per Lee and Finn JJ (BHP Steel); Australian Competition and Consumer Commission v Info 4PC.com Pty Ltd (2002) 121 FCR 24; [2002] FCA 949 at [9] per Nicholson J;

…

(f)   parties accused of contempt are entitled to conduct their case on the basis that the only charge which they are required to meet is that which has been particularised against them: BHP Steel at [31] per Lee and Finn JJ; Australian Building Construction Employees and Builders Labourers Federation v Minister of State for Industrial Relations (1982) 43 ALR 189 at 206–7 per Evatt and Deane JJ (Builders Labourers Federation).”

221. Further, his Honour, at [174], considered that the appellants’ conduct was “entirely out of order”, “contrary to the very principles of Halachic law the Rabbis are bound to uphold” and “totally unreasonable”.

Parties’ submissions

224. The appellants submitted that the costs order made by the primary judge was unreasonable or plainly unjust, such that there was a failure to properly exercise the Court’s discretion as to costs. They submitted that his Honour mistook a material fact, by proceeding on the basis that their conduct was “entirely out of order”, contrary to the principles of Halachic law and “totally unreasonable”.

225. They also submitted that his Honour erred in failing to give any weight to two material circumstances: first, the fact that the apprehended bias issue, in respect of which the respondents did not succeed, occupied the majority of the hearing; and secondly, the fact that what was then intended to be the final hearing listed for 23 June 2017 was adjourned because the respondents sought to expand the proceedings to include allegations of contempt.

226. Further, they submitted that his Honour had regard to the following extraneous and irrelevant matters: that they had not applied for summary dismissal of the proceedings; that they did not contend that the proceedings were unarguable; and that their conduct was “entirely out of order”, contrary to the principles of Halachic law and “totally unreasonable”, in circumstances where his Honour found against the respondents on the apprehended bias issue.

227. The appellants also submitted that the primary judge erred in failing to provide reasons for awarding costs on an indemnity basis from 14 July 2017 onwards. They submitted that, in any event, there was no basis to do so. They also submitted that the award had the perverse outcome that they were required to pay indemnity costs in respect of a discrete issue, namely, the apprehended bias issue, that took up the majority of the hearing and in respect of which they succeeded.

228. The appellants contended that the respondents should pay their costs up to 14 July 2017, and, thereafter, each party should bear their own costs. They submitted that such an order would properly reflect the fact that the respondents were unsuccessful on all issues other than two charges of contempt, including all the issues raised in the proceedings as originally commenced and continued until 14 July 2017, and the fact that the apprehended bias issue occupied a majority of the hearing time.

229. The respondents submitted that the primary judge did not err in the exercise of his discretion. They submitted that the award of indemnity costs was part of the “tangible penalty” that the primary judge considered was warranted. They submitted that once viewed as such, the appellants’ other difficulties with the primary judge’s exercise of his discretion fell away.

Consideration

230. The respondents’ submissions can be dealt with immediately. An award of costs does not form part of the penalty that a court imposes on a party who is unsuccessful in legal proceedings. Costs are compensatory, not punitive. The principle is so well established as not to require a detailed review of the authorities. It is sufficient to refer to the following observations of McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11:

“Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.” (footnote omitted)

231. In our opinion, to the extent that his Honour considered that the costs were part of the penalty to be imposed, we consider that he erred in doing so. It may be that what his Honour had in mind was that the amount of the costs should be moderated because the appellants would have a significant financial penalty to bear. If that was what his Honour meant, then we do not consider that was an erroneous basis upon which to award costs. However, as we explain below, we consider that his Honour erred in the award of indemnity costs in any event.

232. Although, pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 42.1, the usual order for costs is that costs follow the event, a court may, pursuant to the Civil Procedure Act 2005 (NSW), s 98, exercise its discretion to make some different order, including an order which reflects the success of a party on a particular issue: see Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] and the cases cited therein. In particular, the following statement is relevant to the present matter:

“•   Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported).

•   In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal.”

233. These principles have been consistently applied: see Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 at [7]; Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 at [173]; and Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266 at [10]-[14].

234. In the present case, the primary judge held that the court did not have jurisdiction to intervene in the affairs of the Beth Din. As we have explained above, we consider that the better answer is that the issue of procedural fairness raised by the respondents was justiciable. Accordingly, we would not interfere with the costs order made by his Honour in respect of the period up until 14 July 2017.

235. However, we do not see what basis there was for the award of indemnity costs thereafter. Save perhaps for one matter, his Honour did not find that the appellants had protracted the proceedings or otherwise acted improperly or engaged in any misconduct in the course of the proceedings such as to impact on the costs incurred by the respondents. We have already indicated that if his Honour ordered indemnity costs by way of a punitive measure, then he erred in so doing. We are also of the opinion that the fact that the appellants did not apply for summary judgment was irrelevant to the award of costs. The appellants had been charged with a serious matter with serious penal consequences. They were entitled to defend those proceedings to the full.

236. The one matter that may arguably be relevant to the award of costs was that his Honour did not accept Rabbi Gutnick’s evidence in critical respects. However, when his evidence is read in its entirety, we consider that it discloses an obstinate refusal to understand the role of the Beth Din and its relationship to the civil law. This was apparent from the manner in which the appellants gradually moderated their position once Mr Barukh had commenced the subject proceedings. In any event, we do not consider that the proceedings were unduly prolonged by the appellants in any way that would warrant an order for indemnity costs against them.

Costs of the appeal

237. Finally, there is the question of the costs of the appeal. The appellants have failed in having the convictions for contempt set aside. However, they have been successful in having the penalties imposed by the primary judge significantly reduced and in having the costs orders varied, although not in the way they sought. Those issues did not take up a great deal of time in argument. Nonetheless, we consider that the appellants’ success on those issues should be reflected in the costs order that is made. Finally, although it was not necessary to determine the cross-appeal, it was relevant to the costs issue and had to be considered. The respondents should therefore have the costs of the cross-appeal. No separate costs were involved on the notice of contention, which should be considered to be part of the costs of the cross-appeal.

Orders

238. We would make the following orders:

1. Appeal allowed in part.

2. Set aside orders 1, 2 and 3 of 23 April 2018 of the Supreme Court and, in lieu thereof, order that:

1. the first, second and third appellants pay to the Registrar of the Court a fine for contempt of court in the sum of $7,500;

2. the fourth appellant pay to the Registrar of the Court a fine for contempt of court in the sum of $2,500; and

3. the appellants pay the respondents’ costs of the proceedings below on an ordinary basis.

3. The appellants to pay 75 per cent of the respondents’ costs of the appeal.

239. McCOLL JA: I have had the benefit of reading the reasons in draft of Chief Justice Bathurst and President Beazley. These reasons assume familiarity with the facts as there set out which I repeat, or supplement, only to the extent necessary for context.

240. I agree with their Honours’ resolution of issue 2, namely that the primary judge’s findings of contempt were those that were charged.

241. I do not, with respect, agree with their Honours’ conclusion that the appellants’ conduct in saying they would impose the religious sanctions referred to in the 29 December 2016 email and 28 February 2017 letter constituted criminal contempt of court in imposing improper pressure on the second respondent, who describes himself as an Orthodox Jew, to deter him from exercising his right, or the first respondent corporation’s right, to access a secular court in order to have such a court determine the alleged commercial dispute between the first respondent and SalesPort LLC. In particular, in my view, the respondents did not establish that case beyond reasonable doubt. [1]

     1. Witham v Holloway (1995) 183 CLR 525 at 534; [1995] HCA 3 per Brennan, Deane, Toohey, and Gaudron JJ.

242. Rather, in my view, the evidence established that the appellants, who are judges of the Sydney Beth Din, a religious court that administers Halacha, or Jewish law, were seeking to ensure the second respondent’s attendance at the Beth Din. Accordingly, neither communication constituted improper pressure which had “ha[d] as a matter of practical reality, a tendency to interfere with the due course of justice”,[2] such as to constitute criminal contempt of court.

     2. John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 370; [1955] HCA 12 per Dixon CJ, Fullagar J, Kitto J and Taylor J.

Legal framework

243. The criminal contempt charges against the appellants were based on an allegation of interference with the administration of justice as a continuing process. Such cases “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”. [3] In order to establish criminal contempt it is necessary for the court to be satisfied that “the acts of the alleged contemnor were intentional and were calculated to interfere with the course of justice”. [4] This class of contempt is described as being a “wider or more general kind of contempt of court”. [5] It looks to the effect the impugned conduct “has generally in relation to the course of justice as administered in a particular court”. [6]

     3.    The Prothonotary v Collins (1985) 2 NSWLR 549 (Collins) at 567 per McHugh JA; see primary judgment at [246].

     4. Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322 at [38] per Brereton J; cited with approval in Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 at [125], [163] per Ward CJ in Eq.

     5. Commercial Bank of Australia v Preston [1981] 2 NSWLR 554 at 565 per Hunt J.

     6. See Collins at 556 per Mahoney JA; see also James v Robinson (1963) 109 CLR 593 at 602; [1963] HCA 32 per Kitto, Taylor, Menzies and Owen JJ.

244. These issues fall for determination in the context, as the primary judge recognised, of “the judicially recognised right of unimpeded access to the courts” afforded to all citizens. [7]

     7. Live Group Pty Ltd and Anor v Rabbi Ulman and Ors [2017] NSWSC 1759 at [88].

245. However, they also fall for determination in circumstances where “the law recognizes a complete freedom of conscience in matters of religion”[8] and it is acknowledged that “[f]reedom of religion, the paradigm freedom of conscience, is of the essence of a free society.”[9] Accordingly, there is “an area within which a person subject to the law is free to believe and to act in accordance with his belief without legal restraint.”[10] However, “[t]he freedom to act in accordance with one's religious beliefs is not as inviolate as the freedom to believe, for general laws to preserve and protect society are not defeated by a plea of religious obligation to breach them”. [11]

     8. Attorney-General for the State of New South Wales (on the Relation of MacLeod) v Grant (1976) 135 CLR 587 at 600; [1976] HCA 38 (Grant) per Gibbs J (as his Honour then was).

     9. Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 120 at 130; [1983] HCA 40 per Mason ACJ and Brennan J.

     10. Ibid.

     11. Ibid at 135 – 136.

246. As the primary judge recognised, “religious freedoms are vital and important in a democracy” but “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”. [12] As will be apparent from the juxtaposition of the propositions in the preceding paragraph, the balancing exercise to which his Honour referred may often be a delicate one.

     12. Live Group Pty Ltd & Anor v Rabbi Ulman and Ors [2017] NSWSC 1759 at [269].

247. As Gibbs J said in Grant, “[n]o one is compelled to adhere to, or to abjure, any particular religious opinions. Any member of a church is perfectly free to leave that church and join another which professes different beliefs and has a different mode of government”. [13]

     13.    At 600.

248. Furthermore, it should be recognised as Murphy J explained in Grant that, “[j]udicial determination of religious doctrine and practice is as much state interference in religious affairs as legislative and administrative measures are”. [14] That does not mean that churches (using that expression broadly) are immune from judicial scrutiny, but, generally “only marginal inquiry into church government is permissible”. [15] In particular, as recognised in a body of United States jurisprudence, “the decisions of the governing body of the church should be accepted on issues of practice and procedure of ecclesiastical government, as well as issues of doctrine” and “controversial questions of doctrine (or departure from doctrine) or practice or procedure in ecclesiastical government … however forceful … arguments [on these issues] appear to be … are outside the judicial sphere. [16] As Kirby P recognised in Uniting Church in Australia Property Trust (NSW) v Vincent, judges’ “competence to determine disputed issues of religious belief is highly doubtful.” [17]

     14.    Ibid at 612 per Murphy J

     15.    Ibid at 613.

     16. Ibid at 613, 614; the primary judge acknowledged in Sturt v Bishop of Newcastle [2012] NSWSC 400 at [46] “that courts have routinely not interfered in the internal workings of voluntary associations especially religious organisations”.

     17.    (Unreported, Court of Appeal (NSW), Kirby P, Clarke JA and Sheller JA, 19 August 1994) at 10.

249. Simon Brown J went even further in R v Chief Rabbi; ex parte Wachmann,[18] ruling that “the court would never be prepared to rule on questions of Jewish law.”

     18. [1992] 1 WLR 1036 at 1042.

250. In Canterbury Municipal Council v Moslem Alawy Society Ltd, McHugh JA said that in determining a question of statutory construction of the local council’s planning scheme ordinance, where the issue was whether a building used for prayer and the reading of the Koran by members of a religious sect and to which the public had no access was a “place of public worship”, the court should bear in mind that the background to the proceedings was the question of freedom to exercise religious beliefs. [19] Thus, in his Honour’s view, if the ordinance was “capable of a rational construction which permits persons to exercise their religion at the place where they wish to do so … a court should prefer that construction to one which will prevent them from doing so.”[20]

     19. (1985) 1 NSWLR 525 at 543 – 544 (Priestley JA agreeing); appeal dismissed: Canterbury Municipal Council v Moslem Alawy Society Ltd (1987) 162 CLR 145; [1987] HCA 8.

     20. Ibid at 544.

251. Such a consideration is clearly also apposite when seeking to characterise the conduct of an ecclesiastical church whose only powers to ensure religious observance by its members are, as Rabbi Gutnick acknowledged, “to [urge the member] to do the right thing in accordance with Jewish law”. That law included the fundamental tenet that all Jews must comply with the summons of a Beth Din.

252. Finally, in this context, I would observe that the sanctions the appellants said they would impose were in the nature of excommunication, which is a form of religious censure common to many religious communities.

Factual framework

253. In 2015, Live Group Pty Ltd, of which the second respondent is a director, entered into a commercial agreement with SalesPort LLC, which included a dispute resolution clause requiring that disputes “shall be brought to the Chief Dayan of Sydney AUS. (sic) Rabbi Gutnick ... and his decision will be final and acceptable on both sides.” The agreement was negotiated and signed by the second respondent on behalf of Live Group Pty Ltd, and by Jesse (or Yosef) Kuzecki on behalf of SalesPort LLC. In July 2016, Mr Barukh terminated the agreement. Mr Kuzecki brought the resulting dispute to the Sydney Beth Din. On 14 December 2016, the Sydney Beth Din served a “First Summons to a Din Torah”. Mr Barukh was one of the defendants.

254. In response, on 20 December 2016, Mr Barukh’s solicitor told the Beth Din that Mr Barukh had “no intention” of appearing at the Din Torah, and that he was “refusing to do so”, and asked the Beth Din to withdraw its summons. The letter also stated that, if Mr Kuzecki believed that he had a proper claim, he could bring proceedings in a civil court. It is also noteworthy that the letter stated:

“From our understanding, the activity of Dinei Torah is to help solve disputes by means of arbitration and adjustment. As well as calling upon Jewish Law and ethical teaching in making its decisions, the Beth Din is empowered [to] help to contain disputes involving members of the Jewish Community with the intention of avoiding recourse to the civil courts.” (Emphasis added)

255. The 29 December 2016 email the subject of charge 2 referred to Mr Barukh’s “responsibility in accordance with Jewish Law”, and stated that unless he acquiesced “to the Beth Din process in accordance with Jewish Law”, certain “halachic sanctions” would apply. At this stage, there was no suggestion Mr Barukh intended to commence any legal proceedings.

256. That suggestion was first made on 27 January 2017, a suggestion made good on 9 February 2017 when the respondents commenced these proceedings, seeking, in addition to final orders, interlocutory orders restraining the Beth Din from imposing the sanctions. Thus, far from the 29 December 2016 email having any effect on deterring the respondents from exercising their civil rights, it appears to have prompted them to do so, or at least, seek to do so.

255. After negotiations between the parties, on 15 February 2017 the appellants gave undertakings that they would not impose any of the threatened sanctions without first giving 21 days’ notice.

256. On 28 February 2017 the appellants’ solicitors sent the letter the subject of charge 6 which gave the required notice, in accordance with the appellants’ undertakings, that the Beth Din would impose the sanctions identified in the 29 December email unless Mr Barukh submitted to the jurisdiction of the Beth Din, and also stated that if Mr Barukh wished to apply for an interlocutory injunction in relation to that issue then the appellants would “cooperate with [the respondents] to obtain an early hearing by the Supreme Court of that application.”

257. At this stage of course, proceedings had been commenced, and, in my view, while the appellants were exhorting Mr Barukh to resolve the dispute Mr Kuzecki had notified in accordance with the dispute resolution clause, they were clearly accepting the jurisdiction of the Supreme Court to resolve the issue of their entitlement to do so.

258. Once again, as history records, the respondents were undeterred and persisted with their civil proceedings. They proposed an expedited hearing with which course the appellants agreed. It was not until June 2017, when the matter came on for hearing that at the primary judge’s apparent suggestion, the respondents alleged the appellants were guilty of contempt of court. An amended summons to this effect was filed in July 2017.

259. As the 28 February 2017 letter effectively repeated the 29 December 2016 email, it is worth repeating that the latter communication said:

“‘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 [Mr Barukh] ...

Unless by 5pm January 26 2017 the Beth Din hears from you on behalf of your client [Mr Barukh] 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.

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 [Mr Barukh] 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.” (Emphasis added)

Consideration: charge 2

262. The first point to make about charge 2, as I have already mentioned, is that at the stage the 29 December email was sent, Mr Barukh had not given any indication he had in mind seeking relief in a civil court. Rather, all he had done was state, rather obdurately, that he had no intention of appearing at the Beth Din. The appellants’ response, in those circumstances, in my view, can only be understood as an exhortation to comply with Halachic law. It was made in circumstances where the appellants must have known that the Mr Barukh was, and in any event he professed himself to be, an avowedly observant and “life-long, practicing, orthodox Jew”.

263. Secondly, the first respondent had signed a dispute resolution clause which, in my view, in agreeing that any dispute “shall be brought to the Chief Dayan of Sydney AUS. (sic) Rabbi Gutnick” could only be understood, objectively, as recognition of the authority of the Beth Din to determine controversies under the agreement with SalesPort LLC. As appears below, at the time the agreement was made, Rabbi Gutnick was, and had for many years been, a judge of the Sydney Beth Din.

264. As the respondents accepted on appeal, the dispute resolution clause was an arbitration agreement governed by the International Arbitration Act 1974 (Cth), that is to say, “an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.”[21]

     21. International Arbitration Act, Sch 2 (UNCITRAL Model Law on International Commercial Arbitration (As adopted by the United Nations Commission on International Trade Law on 21 June 1985, and as amended by the United Nations Commission on International Trade Law on 7 July 2006) as defined in Art 7 of the Model Law. The Model law has the force of law in Australia: International Arbitration Act, s 16.

265. Thirdly, the sanctions the Rabbis advised would be imposed were, as I have said, a form of excommunication, not dissimilar, indeed no doubt comparable, to religious censures imposed by other faiths. Had they become public, in my view, many, if not most, members of the community would understand them in that context. In particular, in my view, objectively, they would be regarded as urging the appellants to submit their dispute to the Beth Din for at least the two reasons to which I have already referred: abiding by the Halachic law and secondly, observing the dispute resolution clause.

266. Fourthly, I cannot, with respect, accept that the tone of the 29 December 2016 email was ‘belligerent’. It was certainly firm, but that is what might be expected of a communication from a court to a recalcitrant litigant seeking to dispute its prima facie authority, whether under Halachic law or the dispute resolution clause. But even disputes expressed in strong language do not necessarily lead to the conclusion there has been a contempt of court. [22]

     22. See Warringah Shire Council v Manly Daily Pty Ltd (Unreported, Court of Appeal (NSW), Hope, Glass and Samuels JJA, 27 August 1985), discussed by Mason P in Harkianakis v Skalkos (1997) 42 NSWLR 22 (Harkianakis) at 38ff, esp at 40.

267. Fifthly, Mr Barukh gave evidence that “Australian Corporations Law governs the conduct and legal obligations of Live Group [and that] Live Group cannot be held responsible or liable for any deemed halachic obligation as the Beth Din and the Defendants are seeking to do, by summonsing myself and my mother, the only Directors of Live Group, as well as my sister who lives in Switzerland and has never had any involvement in Live Group or its associated entities”.

268. In response, Rabbi Gutnick, who was the senior Dayan (judge) of the Sydney Beth Din, deposed that:

“According to Halacha, a person cannot hide behind a corporate veil or other legal entity to avoid their own personal responsibility in a business dealing. For this reason, Jewish law does not accept or recognise a corporate veil the same way that secular law does.” [23]

23.    It was presumably for this reason that the Beth Din issued the summons to attend the Beth Din to all the directors of Live Group, that is to say, Mr Barukh, as well as his mother. It appears that Mr Barukh’s sister was named in the summons because Mr Kuzecki asserted that she and Mr Barukh were joint owners of Blessed Corporation which owned 95% of the shares in Live Group. There was no evidence it was ever served on her. Neither Mrs Barukh, the second respondent’s mother, nor his sister, Elana Barukh was a party to the proceedings.

269. Rabbi Gutnick had been a Rabbi since 1981 and a Dayan since 1984. He became a Dayan on the Sydney Beth Din in 1993 and the Senior Dayan in 2012. He gave evidence that he and Rabbi Ulman, had international recognition as respected Dayanim and authorities on Jewish Law. This meant that persons “who receive their advice or decisions have confidence that they will be accepted in any other Beth Din and particularly in the Land of Israel”.

270. It does not appear that either the second respondent or Rabbi Gutnick was cross-examined about their respective assertions. No doubt, this was a forensic decision made by the respective counsel, recognising it was an area where views might differ.

271. In my view, this court ought not to reject Rabbi Gutnick’s evidence about the way Halachic law dealt with corporations. This is, not least because, as I have discussed, decisions of the governing body of the church should be accepted on issues of practice and procedure of ecclesiastical government, as well as issues of doctrine.

272. Nor, in particular, should the court prefer Mr Barukh’s evidence on this point. First, on its face, he was merely making an assertion about the effect of the Corporations Law, rather than an assertion of a tenet of Halachic law. Secondly, if it can be regarded as being of the latter nature, the mere fact that one member of the Jewish religion holds a belief contrary to that of the leading judges of the Beth Din administering the Halacha law as to its fundamental tenets, cannot be accepted as binding the appellants, let alone this court. [24]

     24. See generally in relation to charitable trusts over property held for church purposes: Attorney-General; Ex rel Elisha v Holy Apostolic & Catholic Church (1989) 37 NSWLR 293 at 311ff per Young J (as his Honour then was).

273. Accordingly, in my view, the Beth Din’s assertion of jurisdiction over those who stood behind Live Group was consistent with Halachic law.

274. Even if that were not the case, and the appellants were labouring under a mistaken, albeit honestly held, view as to the effect of Halachic law, that could not, in my view, be the determining factor in the question whether their conduct was such as a matter of practical reality to have a tendency to interfere with the due course of justice.

275. It should be recalled that these were criminal proceedings in which “[i]f a statement is reasonably capable of more than one meaning and one of those meanings does not involve contempt, a charge based upon that statement is, … not made out.”. [25]

     25.    Harkianakis at 40 per Mason P, referring to Hope JA in Warringah Shire Council v Manly Daily Pty Ltd at 10.

276. In my view, when the evidence is assessed objectively, the appellants were urging the second respondent to comply with Halachic law and resolve the dispute in the Beth Din. There was nothing in the 29 December 2016 email which suggested he should not have recourse to a civil court.

277. In my view, the primary judge erred in finding that the email of 29 December 2016 constituted an interference with the administration of justice generally.

Consideration: charge 6

278. I also cannot accept that the letter of 28 February 2017 could, as a matter of practical reality, have a tendency to interfere with the due course of justice. It was written in the course of legal proceedings. It gave notice of a course of action the appellants would invoke unless restrained by an interlocutory injunction. The 21 day notice it gave was a period which had been agreed between the parties and was part of the undertaking the appellants gave to the court on 15 February 2017.

279. There was no suggestion that the appellants had breached their undertaking. Rather, they had clearly complied with it. It would be a curious outcome that they should be found guilty of contempt of court, in circumstances where they had given notice in accordance with a court undertaking.

280. It is even more curious, in my view, that a letter which complies with a court undertaking could be judged to impose improper pressure, particularly in circumstances where the letter of 28 February 2017 made it clear that the appellants would abide by the order of the court as to whether or not they could impose the sanctions. In other words, the appellants were clearly deferring to the court’s authority in this respect.

281. Although the parties tended to refer to the appellants’ letter of 31 January 2017, I do not understand that letter to have been the subject of charge 6. The only matter that should be considered for the purpose of determining charge 6 is whether the letter of 28 February 2017 constituted contempt of court.

282. If it were relevant, then there was evidence that “[a] fundamental tenet of Halacha is that all Jews must comply with the summons of a Beth Din” and that “compliance with this rule is a religious obligation, and non-compliance has a recognised religious and communal significance.” In addition, there was evidence that it is a “fundamental Halachic rule that ‘all Jews must seek resolution of their conflicts within the Halachic system rather than in the secular courts’. No person who professes to be of the Jewish faith can fail to comply with this obligation and still be true to the faith.”

283. Consistent with those tenets, the appellants were, in my view, entitled to express the view that a person who appeared to disagree with these tenets was no longer an adherent to the Jewish religion. Again, this court should not intrude upon the rabbinical view of the Halacha. Further, and once again, the mere fact that Mr Barukh may have expressed an alternative view cannot, even if relevant, be dispositive.

The cross-appeal

284. The background to the cross-appeal is set out in the joint judgment. Again, I shall not repeat the facts save to the extent necessary.

285. I would accept the appellants’ submissions that it is premature to resolve the issue of the justiciability of the issue whether the Beth Din lacked jurisdiction to hear the dispute because of an apprehension of bias.

286. As the appellants submitted, the unchallenged evidence was that if someone appeared before a Beth Din and then refused to enter into such an arbitration agreement, then “[t]hat would be the end of it.” Secondly, it was not correct to submit, as did the appellants, that an arbitration agreement promulgated by the Beth Din would necessarily have precluded access to a civil court. The only evidence that related to the content of the Beth Din’s arbitration agreements was that their purpose was to ensure that any award made by the Beth Din would be enforceable in a civil court. Thirdly, again, the appellants’ evidence was that sanctions against instituting or maintaining proceedings in a civil court were never a part of the processes of the Beth Din.

287. Further, the appellants’ evidence was that they had acted in relation to Mr Barukh “on their shared religious beliefs”. They did not purport to assert “‘jurisdiction’ to conduct arbitral proceedings”, at least not until an arbitration agreement recognised according to the laws of Australia had been executed.

288. Accordingly, there was no real controversy about the Beth Din’s “jurisdiction” to conduct arbitral proceedings, to which the declarations the respondents sought could go. [26] The issues the respondents sought to agitate by their cross-appeal were hypothetical. Declaratory relief will not be granted in such circumstances. [27]

     26. Cf Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437; [1972] HCA 61 per Gibbs J.

     27. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582; [1992] HCA 10 per Mason CJ, Dawson J, Toohey J and Gaudron J.

289. The cross-appeal should be dismissed with costs.

The costs issue

290. The costs issue can be dealt with briefly. Having regard to my conclusions, the basis for the indemnity costs order, that “the conduct of the Defendants was entirely out of order and contrary to the very principles of Halachic law the Rabbis are bound to uphold [and] [i]n the circumstances their behaviour was totally unreasonable”,[28] cannot be sustained.

     28. Live Group Pty Ltd & Anor v Rabbi Ulman and Ors [2018] NSWSC 393 at [175].

Orders

291. I would make the following orders:

1. Appeal allowed.

2. Set aside the declarations and orders 1 to 3 made on 20 December 2017, and orders 1 and 2 made on 23 April 2018.

3. Dismiss the Further Amended Summons and the Statement of Charge in the proceedings below.

4. Order the respondents to pay the appellants’ costs of the proceedings below.

5. Order the respondents to pay the appellants’ costs of the appeal.

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Endnotes

Amendments

21 December 2018 - minor typographical corrections made

20 December 2019 - Quoted paragraph [271] at [66] - final sentence, added the word “not” before “the appropriate place” as per amendment in Live Group Pty Ltd and Anor v Rabbi Ulman and Ors [2017] NSWSC 1759.

Decision last updated: 20 December 2019