Beth Din in contempt – to be fined
In announcing the penalties facing the Sydney Beth Din a Supreme Court judge has written that he regards the improper pressure as a serious affront and challenge to the integrity of the administration of justice in New South Wales following the Beth Din’s ruling a commercial case be heard by them and not in a civil court.
Rabbi Moshe Gutnick
The Supreme Court in Sydney heard that the Beth Din had threatened religious against Reuven Barukh should he refuse their instructions and Barukh sought an injunction.
Reuven Barukh refused to attend a Din Torah at the Sydney Beth Din to hear a commercial case between his company Live Group Pty Ltd and the Delaware-registered Salesport LLC
The Beth Din advised him he could be liable to be barred from being in a minyan, called up to the Torah or receiving an honour in a synagogue.
In the December judgement, Justice John Sackar opined that the issue dealing with injunction “is beyond the jurisdiction of this Court”.
But the defendants, Rabbi Yehoram Ulman, Rabbis Moshe Gutnick, Rabbi Michael Chriqui and Rabbi Eli Schangler, still faced the other two charges of contempt arising from the pressure brought down on Barukh in dealing with the Beth Din rather than the secular court following Barukh’s refusal to appear before the Beth Din.
The following Justice Sackar’s December decision:
On Thursday’s judgement Justice Sackar said: ”
- I was not satisfied that this Court had jurisdiction to intervene in the affairs of the Beth Din, despite it being clear in my view on the evidence the Beth Din had not afforded Mr Barukh natural justice.
- I was, however, satisfied beyond reasonable doubt that the Defendants were guilty of Charge 2 and Charge 6. These two Charges concern the Beth Din’s threat of sanctions directed at Mr Barukh, especially as asserted in the 29 December 2016 email and 28 February 2017 letter. I was satisfied Charge 2 and Charge 6 amounted to improper pressure which as a matter of practical reality had the tendency to interfere with the administration of justice.
- In relation to Charge 2, my findings are at paragraphs of the original judgment. In relation to Charge 6, my findings are at paragraphs.
Charge 2:
Rabbi Yoram Ulman
On 29 December 2016, you, in your capacities as representatives of the Sydney Beth Din, after having received further notification from the plaintiffs that they considered the dispute the subject of the Sydney Beth Summons [sic] to be a civil matter that ought to be determined in a constitutionally established court of civil jurisdiction in Australia and that the said dispute ought not be adjudicated upon by the Sydney Beth Din, made the following threat to the second plaintiff:
“The Beth Din is a court of law whose jurisdiction applies on all members of the Jewish Faith and in particular those who consider themselves observant as does your client [the second plaintiff]…
Unless by 5pm January 26 2017 the Beth Din hears from you on behalf of your client [the second plaintiff] that he has recanted and that he acquiesces to the Beth Din process in accordance with Jewish Law, (which is indeed compatible with secular law), the following halachic sanctions will apply and the Synagogue’s where he prays will be informed accordingly.
He will not be counted to a minyan.
He will not be able to receive an aliyah to the Torah.
He will not be offered any honour in the Synagogue.
There are further sanctions that will be applied should your client maintain his recalcitrance…
We advise and urge your client [the second plaintiff] not to underestimate the resolve of the Beth Din in ensuring Jewish law is adhered to especially with those who profess to adhere to the tenets of Orthodoxy.”
Charge 6:
On 28 February 2017, after the plaintiffs had commenced and served proceedings against you in the Supreme Court of New South Wales seeking, inter alia, declaratory and consequential relief challenging the Sydney Beth Din Summons and the jurisdiction of the Sydney Beth Din to conduct the proposed arbitral proceedings, you, in your capacities as representatives of the Sydney Beth Din, made the following threat to the second plaintiff:
“…unless the plaintiff complies with the orders of the Beth Din and submits to its jurisdiction as his religious obligations require, the Beth Din intends to impose on him the religious sanctions set out in the email from the secretary of the Beth Din to Lazarus Legal Group dated 29 December 2016…
Rabbi Michael Chriqui
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.”
In evidence regarding the penalty, the judgement states: “Rabbi Gutnick noted the essential symbiosis of secular law and Jewish law, and his belief that Jewish people should respect the rule of law, and hence how to find himself in a position that he is in contempt of Australian law is something he could and would never knowingly or intentionally do.”
On charge 2, Justice Sackar states: “Rabbi Gutnick acknowledged he played the leading part in the decision amongst the Rabbis to write the letter to Mr Barukh. He stated Rabbi Schlanger, as the Registrar, should be considered only as their mouthpiece and hence had no responsibility for the contents of the letter and no part in the decision to issue it.
In this affidavit, Rabbi Gutnick stated his intention was to warn Mr Barukh that sanctions would be imposed if he continued to refuse to respond to the summons, and that the Beth Din solely wanted Mr Barukh to attend a directions hearing called by the Beth Din.
Rabbi Gutnick stated he did not mean that the Rabbis would force Mr Barukh to have his dispute heard by the Beth Din or prevent him from commencing proceedings in the Supreme Court of New South Wales.
Rabbi Gutnick also observed Jewish law only applies where disputes are between Jews, and the motivations of the Defendants were purely religious and considered as a duty to Mr Kuzecki to permit him to access justice through a Jewish court as requested (especially as Mr Kuzecki reportedly could not have afforded to go before the Supreme Court of New South Wales).”
The original commercial dispute was between Barukh’s company Live Company and Kuzecki’s company SalesPort LLC.
On charge 6 the judgement states: “As to Charge 6, Rabbi Gutnick stated the Defendants’ intention was always to do everything within their power to cooperate with and participate in the Court’s processes, and that they expected Mr Barukh to progress proceedings.
Rabbi Gutnick stated the Defendants would never impose, or threaten to impose, sanctions on someone for commencing or continuing court proceedings, including in the circumstances of this case. Rabbi Gutnick stated it never occurred to him that there would be an actual need to impose sanctions.”
The penalty
Isaac Volinski and Rabbi Eli Schlanger
On regarding the penalty to be imposed, Justice Sackar stated: “I also observed the Charges needed to be seen in a particular context which obviously included this litigation.
I also regarded the Defendants’ conduct in threatening religious sanctions for failing to attend the Beth Din as the application of improper pressure not to approach a secular court, with the threat (for Mr Barukh) of dire consequences if such an approach were to be made. This is especially so when viewed in the context of Mr Barukh’s relevant vulnerabilities.
The maintenance of the threats of sanctions was not as I also found a direct result of Mr Barukh’s approach to the Court on 9 February 2017. They were initially triggered by him suggesting in December 2016 a secular court and not the Beth Din was the appropriate forum. They were then maintained not because he had commenced these proceedings, but first in the context of him as a putative litigant and then despite his having commenced proceedings.
As such, I regard the improper pressure (as I have found it to be) as a serious affront and challenge to the integrity of the administration of justice in New South Wales. The threats in context were to assert and force the primacy of the Beth Din and its exclusivity over Mr Barukh as against a secular Court, with serious religious sanctions to be imposed if that primacy and exclusivity were not observed.
The threats which first emerged from the Beth Din, commencing with their communications of 22 and 29 December 2016, were clearly a direct result of the Plaintiffs challenging the exclusive jurisdiction of that body to deal with the commercial dispute that had allegedly emerged between the Plaintiffs and Mr Kuzecki.
These threats had an undoubted effect on Mr Barukh in particular and no doubt members of his family.
Again as I have already indicated, freedom of religion and one of its close allies freedom of speech are vital in any democracy. However, the former should not be used as a tool of oppression so as to exert pressure on a putative litigant. Nor should the former be used as a means of inflicting serious reputational, hurtful and humiliating pressure as a retaliation for a refusal to acknowledge and obey a religious body’s alleged exclusive authority to the exclusion of a secular court. This was not a case where the Defendants were merely exercising their right to freedom of speech in advocating the primacy, or for that matter the spiritual requirements of Jewish law in disputes between observant Jews.
All the Plaintiffs did was to indicate a view that a secular court was the appropriate forum for any commercial dispute between the relevant parties. This view was confronted by an autocratic and uncompromising response, the explicit message being the superiority of Jewish law and a threat that contemplation of a secular court in the circumstances would attract serious religious sanctions. The communication of 28 February 2017 simply deferred, as it were, the infliction of the sanctions.
Citizens should not be threatened, coerced or deterred from approaching or for that matter suggesting an approach to a secular court for the resolution of any dispute. They certainly should not be threatened with the sanctions of the kind here, which were and were intended to have undoubted effect on Mr Barukh in particular as an adherent of the Jewish faith. In my view, the conduct as a matter of practical reality had the effect of frustrating the attainment of justice.
I regard the persistence of the pressure as outlined by the Defendants as serious in the circumstances. Each Defendant holds a position of stature and authority in the Jewish community. To say that they have never heard of such a case before is beside the point.”
The judgement made mention that the threats of religious sanction being imposted on Barukh continued after the litigation started.
Justice Sackar wrote in his judgement that he did not accept Rabbi Gutnick’s evidence in one matter.
Justice Sackar wrote: “The evidence which was given before me on 19 March 2017 that it was no intention on the part of Rabbi Gutnick at least to force Mr Barukh to have his dispute with Mr Kuzecki determined by the Beth Din is simply not in accordance with the terms and tone of the relevant communications referred to in my judgment. I do not accept his evidence. There is no doubt the Defendants decided to ‘warn’ Mr Barukh (see for example Rabbi Gutnick’s affidavit of 7 March 2018 at [22]). That was the whole point of the communications. Rabbi Gutnick, somewhat belatedly, suggested at [25] of his affidavit of 7 March 2018 that if Mr Barukh attended a directions hearing and said he did not wish to have his dispute heard by the Beth Din at all but was going to a civil court, that would have been the end of it. Again I do not accept this evidence. It is contrary to his and other contemporaneous communications to Mr Barukh.”
Justice Sackar made a point of the rabbis’ character. He said in the judgement: “There is no issue but that the Defendants are of good fame and character. There has been no previous findings of contempt against them generally or certainly in relation to the matters the subject of this litigation.
The persons concerned here have received no benefit or personal gain from the contempts.
The Defendants submit that both contempts are to be assessed as falling at the lower end of seriousness. I do not agree.”
Justice Sackar stated: “I regard Rabbi Gutnick as the principal actor in the circumstances and as a result he should bear a greater responsibility than that of the others.”
He added: “There was no hint of conciliation on their part. There was no room for any other view but theirs. They were not to be stopped and only put their sanctions on hold to allow the various issues to be ventilated in court.”
He wrote that he accepted that “the Defendants generally and in particular are persons who have dedicated their lives to serve the Jewish community in Australia and elsewhere. That does not excuse their behaviour in my view”.
Coming to the costs Justice Sackar wrote: “The Plaintiffs have suggested fines of $100,000.00 for Rabbi Gutnick and $50,000.00 for the others. I regard those fines as excessive. The Defendants no doubt for forensic purposes say nothing on quantum as such. In the circumstances I consider Rabbi Gutnick should be fined $20,000.00 and the others $10,000.00 each.”
At point the counsel for the defendants proferred an apology from the four rabbis. The apology stated: “The Defendants, having listened to what your Honour put to me, and understood from that that your Honour takes what they have said in their affidavits as falling short of a frank admission of responsibility and regret for having conducted themselves in a way that has found to be contemptuous, they instructed me, in terms, to proffer an apology on their behalf to the Court for any insult to the Court or to the administration of justice that their conduct entails, and, of course, they are prepared to swear to that if need be, or attest to that on oath if need be. They wish their position to be understood clearly.”
The conclusion
- It is plain that I rejected the Plaintiffs cause of action but for two Charges of contempt. However I am satisfied that the Plaintiffs were obliged to commence the proceedings in order to stop the Defendants from proceeding with the threatened religious sanctions. I therefore consider the commencement of the proceedings initially was both necessary and reasonable. I should also note there was no attempt to apply for summary dismissal of the original proceedings nor were they said to be unarguable
- Whilst I found against the Plaintiffs on the justiciability apprehension of bias issue, as I made plain 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. In the circumstances their behaviour was totally unreasonable (see the original judgment at [226], [229], [233] and [268]).
- The Plaintiffs were however successful on two serious contempt charges. There was a considerable factual overlap in the contempt charges. In the circumstances of this case, I consider the Defendants should pay the Plaintiffs’ costs on an ordinary basis prior to 14 July 2017. Thereafter, the Defendants in my view should pay the Plaintiffs’ costs on an indemnity basis including the penalty hearing.
- I would invite the parties to prepare short minutes to reflect these orders including the terms of any declarations.
