AMEC Properties Ltd v Planning Research & Systems plc

Supreme Court of NSW|2017-06-15|Before: Brereton J

es, 5th Ed, LexisNexis (2015) Category: Principal judgment Parties: Anthony Wayne Elkerton & Ronald John Dean-Willcocks (first plaintiffs) South Head & District Synagogue (Sydney) (second plaintiff) Rabbi Benzion Milecki (defendant) Representation: Counsel: V Whittaker w M O'Brien (plaintiffs) I Neil SC w L Menzies & L Saunders (defendant)

Solicitors: Kemp Strang (plaintiffs) Pikes & Verekers Lawyers (defendant) File Number(s): 2017/146998

Judgment

The first plaintiffs Anthony Wayne Elkerton and Ronald John Dean-Willcocks ("the administrators") were on 26 April 2017 appointed pursuant to (CTH) Corporations Act 2001, s 436A, as joint and several voluntary administrators of the second plaintiff South Head & District Synagogue (Sydney) ("the company"), a public company limited by guarantee which was registered on 24 December 1954.

The issues

By their amended originating process, the administrators sought: 1. a declaration that Halacha is not the law of the contract and the principles of Halacha, including any principle of Hazakah, are not incorporated into the contract (whether by clause 2 or otherwise); 2. a declaration that clause 9 of the contract does not apply to any dispute that relates to the termination of the defendant's employment by the company, through the administrators; 3. further or in the alternative, a declaration that the issue of the validity of the termination of the defendant's employment for redundancy by the company through the administrators is not arbitrable; 4. a consequential declaration that the defendant's employment was validly terminated by the administrators on 27 April 2017; 5. an ancillary direction to the effect that the administrators are justified in disregarding the rules and customs of the Jewish religion when adjudicating on any proof of debt; and 6. an order that, pursuant to s 447A of the Act, Part 5.3A of the Act is to operate in relation to the Synagogue as if for the purposes of s 440D(1), a "proceeding in a court" included an arbitration proceeding, to the intent that s 440D(1) applies to the any proceedings between the Synagogue and the defendant in a Beth Din or any other forum applying Jewish Law. [1]
However, the Rabbi is not seeking an arbitration; the company would have to be the moving party in any arbitration in which it was alleged that he should be dismissed, and the administrators were not seeking any such arbitration or Din Torah. In those circumstances, issues concerning arbitrability, referral for arbitration, and s 447A, fell away. Essentially, the administrators sought to have determined whether the Rabbi's employment could lawfully be terminated other than by adjudgment by a Din Torah in accordance with Halacha, in order to have clarity as to the financial position of the company prior to completion of their s 439A(4) report. So as to permit that question to be resolved, an extension was granted of the convening period for the s 439A meeting.
With the administrators' consent (under Corporations Act, s 440D(1)(a)), the Rabbi has filed a cross-summons, pursuant to which he ultimately sought: 1. a declaration that the purported termination of his employment was invalid and of no effect; 2. a declaration that his contract remains in force; and 3. an injunction restraining the administrators and the company from terminating his contract unless and until a properly constituted Din Torah has first determined in accordance with orthodox Jewish law that it was justified on a ground recognised by the usages, customs, practices and traditions of Judaism.
Thus the real issues became: 1. were the administrators entitled to terminate the Rabbi's employment other than pursuant to an adjudgment by a Din Torah in accordance with orthodox Jewish law that it was justified on a ground recognised by the usages, customs, practices and traditions of Judaism? If not, the dismissal was wrongful; 2. if the dismissal was wrongful, then, the Rabbi having elected to affirm the contract, should the court grant injunctive relief restraining the administrators from giving effect to the purported dismissal, or leave the Rabbi to his remedy in damages for wrongful dismissal?
Because of some assumptions which appeared inherent in the administrators' arguments, at least as originally formulated, it is appropriate to record some basal propositions of law.
First, a contract of employment is terminable in accordance with its terms, express or implied. Ordinarily, aside from such provision as the contract may make in respect of termination for misconduct, such contracts are either for a fixed term, or terminable upon notice. Where the contract is silent, it will usually be implied that it is terminable on reasonable notice, but the nature and context of a particular contract may show that some other implication is appropriate. Unless the contract specially provides, neither insolvency nor redundancy provides an independent or supervening ground for termination, and such a term would not generally be implied. Termination of an employee before the expiration of a fixed term contract, or other than in accordance with the notice provisions of the contract, is nonetheless wrongful dismissal although it is said to be for "redundancy". [2]
Secondly, the powers of administrators in respect of their company's contracts - including contracts of employment - are no different or greater than those of the directors before the appointment of administrators, and the administrators must comply with the general law in respect of the dismissal of "redundant" employees; they have no special rights in that respect. [3] In distinction from the appointment of liquidators (a winding up order operates as notice of dismissal to all employees), [4] the appointment of administrators has no effect on the company's contracts of employment.
Thirdly, even a wrongful dismissal brings the relationship of employer and employee, and the entitlement of the employee to wages or salary (for which the rendering of service is a condition) - though not necessarily the contract of employment - to an end. If, as usually occurs, the repudiation constituted by the wrongful dismissal is accepted by the employee, the contract too is at an end. If, exceptionally, the employee elects to affirm the contract, so that it remains on foot, then although the employee is not entitled to wages or salary (because he or she is not rendering service), he or she may be entitled to other contractual benefits, and to resume employment without a new contract if the employer changes its mind (voluntarily, or as a result of a court order). [5]
Fourthly, and leaving aside statutory provisions for reinstatement, ordinarily courts do not specifically enforce contracts of personal service. [6] However, they may do so in an exceptional case, at least at the suit of the employee. [7] As it seems to me, the preferable explanation of this is that where the contract remains on foot, the court may make an order which has the effect of requiring the employer to permit the employee to resume his or her duties so as to earn his or her wages or salary.

Were the administrators entitled to terminate the Rabbi's employment?

It was not in dispute, nor in doubt, that the parties to the contract were the company and the Rabbi. This is made apparent by: 1. the title of the contract, which is "Contractual Terms of Engagement between Rabbi Benzion Milecki and the South Head & District Synagogue"; 2. the first clause, in the nature of a recital, which has been set out above; and 3. the execution of the contract by the company under seal, and by the Rabbi.
The express written terms of the contract contain no provision in respect of its duration and termination. The two competing positions are that the contract was terminable on reasonable notice (as was ultimately submitted by the administrators, having eschewed the proposition that it could be terminated for "redundancy"), that being the usual position in the absence of contrary provision; or that the Rabbi has life tenure, subject only to dismissal pursuant to an adjudgment by a Din Torah (as the Rabbi submitted), as a result of the incorporation, or alternatively implication, into the contract of relevant principles of Halacha, referred to in clause 2.
The evidence of Rabbi Yacov Barber, [8] which was unchallenged and uncontradicted, establishes that: 1. "Halacha" denotes orthodox Jewish law and jurisprudence, constituting a divine or divinely inspired 'code of law that regulates every facet of human life, including laws that regulate relations between mankind', obedience to which 'in every aspect of life is an inviolable religious obligation'. 2. It includes 'laws that regulate the legal relationship between a Rabbi and a Synagogue', one of which provides that any dispute between a synagogue and its Rabbi, unless resolved by agreement, must be adjudicated before a Beth Din (which is a court of Jewish law). 3. Another aspect, compendiously known as 'Hazakah', is that a Rabbi who has been appointed by a congregation, however constituted, has life tenure, in that he is entitled to be and remain employed in the position, with all its rights, privileges and benefits, for the rest of his life, and cannot have his appointment terminated, except by agreement, or pursuant to a decision of a properly constituted Din Torah (that is, a hearing or adjudication of a dispute conducted in accordance with Halacha by persons who, by agreement or standing, are qualified to determine the dispute as a Beth Din) in accordance with Halacha that the termination of the Rabbi's appointment is justified on a ground recognised in Halacha, the only such grounds relating to fundamental failure by the Rabbi to perform his Rabbinical duties. Redundancy is not such a ground.
The Rabbi submits that, as a matter of the Australian common law of contract, the content of the contract is informed by Halacha so as to make Hazakah a contractual term, either by incorporation or implication. (The Rabbi does not submit that clause 2 is a choice of law provision that operates to select Halacha as the governing or proper law of the contract). The administrators argue that clauses 2 and 9 are directed to issues as between the Rabbi and the congregation, not between the Rabbi and the company, do not apply to the current dispute about the Rabbi's employment by the company, and do not have the effect of incorporating Halacha, or Hazakah.
The administrators submit that the terms of the contract distinguish in a rational and consistent way between the "congregation" and the "Synagogue", and that their natural reading, and the way they are used in the contract, indicate that they mean different things. In essence, they argue that the term "Synagogue" is used to denote the company, and that the legal obligations pertaining to the defendant's employment are expressed to be as between the Synagogue and the Rabbi, while the Rabbi's spiritual obligations are expressed in terms of the "congregation". As to the former, they point to clause 1 (in which the Rabbi is described as having commenced his services with the Synagogue) and clause 7 (in which the obligation to make the various payments to the Rabbi is imposed on the Synagogue), and that (in clauses 5, 6, 8 and 9) the expression "Board of Management" is used when the right or obligation is that of the company but it is necessary for its authority to be vested in a person (or people). As to the latter, reliance is placed on clause 4 (which describes the leadership and pastoral duties of the Rabbi to his congregation and his congregants). This distinction is said to be logical, because (1) the congregation has no legal capacity to contract under Australian law, and the Rabbi could not sue the congregation for payment should the company default, so that his contract must be and is with the company; and (2) the legal corporate entity could not require, for example, the mentoring and assistance and guidance "at the time of their simchas as well as at the time of their distress" as is referred to in clause 4, whereas the natural persons who constitute the congregation do. This distinction between the meaning of the terms "the Synagogue", "the congregation" is said to be evident in clause 3, which provides: The Synagogue accepts Rabbi Milecki as the Moroh D'Asroh, the sole decisor of all Halachik and spiritual matters pertaining to the Synagogue and its members. It is his responsibility to supply the spiritual guidance for the development of the congregation as a whole as well as that of its individual members and others associated with the synagogue. In order to facilitate the accomplishment of this task, the Rabbi may be invited to attend all Executive and Board Meetings of the congregation.
However, there are telling indications to the contrary. Clause 1, as well as describing the Rabbi as having "commenced his services with the Synagogue", also refers to "the contractual arrangements between the Rabbi and the congregation", treating "the congregation" as synonymous with the company. It is notable that this is immediately followed by clause 2, which is central to the present issue, and refers in strikingly similar terms to "the relationship between the Rabbi and the congregation". The last sentence of clause 3 refers to "Executive and Board Meetings of the congregation"; however, the Executive and Board are organs of the company. The first sentence of clause 3, in referring to the acceptance of the Rabbi as "master of the place" and decisor of spiritual matters, is concerned with his role and authority vis-à-vis the synagogue (as a place of worship) and the congregation, not the company.
Contrary to the administrators' submission, I do not find in the natural reading of the words in the context of the contract, any indication that "Synagogue" and "congregation" are deliberately used to mean different things. Rather, the term "synagogue" is used to refer variously to the company, the physical place of worship, and the congregation of people who worship there. Used in the context of what is essentially an incorporated congregation, "congregation" refers to the incorporated entity.
It is important to recognise that the objects of the company give primacy to the practice and advancement of Orthodox Judaism. They include: (a) To establish and conduct a congregation and synagogue wherein will be practised the customs and observances of Orthodox Judaism. … (c) To promote and disseminate the doctrines and beliefs of Orthodox Judaism. … (f) To bring about and encourage the development of synagogue life according to Orthodox Judaism.
As "Halacha" is a divinely inspired code of law regulating every facet of human life, obedience to which is an inviolable religious obligation, Halacha is co-extensive with the customs, observances, doctrines and beliefs of Orthodox Judaism that are referred to in the company's objects.
It is also notable that amongst the Rabbis' duties under the contract, referred to in clause 4, is: He will answer all questions of Jewish law put to him by his congregants and will do all necessary research in order to supply those answers.
It is inconceivable - in the light of the objects of the company, the purpose and terms of the contract, and the evidence that Halacha regulates inter alia the legal relationship between a Rabbi and a synagogue and that obedience to it is an inviolable religious obligation - that the parties to the contract did not intend that Hazakah (life tenure) be a term of the contract. Clause 2 was intended to provide that the legal relationship between the congregation - the legal emanation of which was the company - and the Rabbi, would be defined by that subset of Halacha that regulates the legal relationship between a Rabbi and a synagogue. The circumstances in which the Rabbi's employment can be terminated are an aspect of "the relationship between the Rabbi and the congregation" in clause 2.
The administrators submitted that clause 2 could not have been intended to govern the legal relationship (as distinct from the spiritual relationship), because it would render clause 9 superfluous. It may well be that a proposal for the Rabbi's non-consensual termination would also found an "irreconcilable dispute between Rabbi and congregation" within clause 9. However, while it is an aid to construction, a redundancy of this kind is a faint basis for concluding that clause 2 could not have been intended to do what it fairly plainly states.
The parties to a contract governed by Australian law can incorporate into the contract, as terms of the contract, provisions of another system of law, including Jewish law. [9] The administrators submitted that there was insufficiently certainty as to precisely what was being incorporated as terms of the contract, invoking Shamil Bank of Bahrain EC v Beximco Pharmaceuticals [10] in which Potter LJ (with whom Laws and Arden LJJ agreed), said that the doctrine of incorporation can only sensibly operate where the parties have by the terms of their contract sufficiently identified specific "black letter" provisions of a foreign law or an international code or set of rules apt to be incorporated as terms of the relevant contract.
Shamil Bank was distinguished by a later Court of Appeal in Halpern v Halpern, [11] in which Waller LJ, with whom Sedley and Carnwath LJJ agreed, said: [33] Shamil was a case in which, as the paragraphs prior to the passages I have quoted show, the court was striving to find the true intention of the parties, and what it was not prepared to accept was a construction of a clause "subject to the principles of the glorious Shari'a, this agreement shall be governed by and construed in accordance with the laws of England" in a way which by introducing some selected terms from Shari'a law would or might defeat the commercial purposes of the contract. It may be that for actual incorporation it is necessary to identify "black letter" provisions, but that seems to me to be another way of saying that there must be certainty about what is being incorporated. If one is dealing with foreign law that would require evidence as to that law and evidence as to how clear it is. "The principles of the glorious Shari'a law" would seem to be a very uncertain phrase when, as I understand it, there can be different schools of thought as to what Shari'a law lays down (as indeed Al Midani indicates). I cannot for my part see why, in a context such as exists in this case, compromising disputes between Orthodox Jews under Jewish law, where it seems to be common ground there is a distinct body of law, Jewish law may not be relied on as part of the contractual framework.
In Shamil Bank, there was an express choice of English law as the governing law, with a proviso that appeared to make it subject to Shari'a law. Importation of relevant principles of Shari'a law would have defeated the commercial purpose of the contract. And the words "subject to the principles of ... Shari'a" stood unqualified as reference to the body of Shari'a law generally and were inevitably repugnant to English law as the governing law of the contract, so as to make the proviso coupled with the choice of English law meaningless. [12]
There is no similar difficulty with the reference to "Halacha" in the context of "defining" the relationship between the Rabbi and the congregation. The reference is to that subset of Halacha that regulates the legal relationship between a Rabbi and a synagogue, which includes, relevantly, Hazakah. There is no reason why, as submitted by the administrators, it would be necessary for "Hazakah" to be specifically identified. There is no evidence of any such controversy concerning the content of that subset of Jewish law as made it impossible to incorporate some or all of "the principles of the glorious Sharia". As in Halpern, there is no difficulty in relying on orthodox Jewish law as part of the contractual framework, and its content, at least for relevant purposes, is not controversial, unclear or uncertain.
Alternatively, if not incorporated, then "Hazakah" is an implied term of the contract. The implication arises from the express terms (including clause 2 and clause 9), from the absence of any other provision as to duration, and from custom. Had the officious bystander observed, when the contract was being made, that it contained no provision about duration, he or she would have been testily suppressed with an "of course, the Rabbi has Hazakah, as an aspect of Halacha". It needs to be borne in mind that any other arrangement would have been antithetical to the Orthodox Jewish life to which the company, the Rabbi and the congregation all subscribed.
Accordingly, the Rabbi's employment was for life, unless a properly constituted Din Torah has first determined in accordance with Halacha that the termination of his appointment was justified on a ground recognised in Halacha, involving a fundamental non-performance of his rabbinical duties. It is uncontroversial that this has not happened. It follows that his "termination" by the letter of 27 April 2017 was an unlawful dismissal.

Should an injunction be granted?

The Rabbi has not accepted the repudiation constituted by the wrongful dismissal, but to the contrary has elected to affirm the contract. In those circumstances, he seeks an injunction restraining the administrators from acting on the purported dismissal and interfering with his performance of his duties - and thus, at least incidentally, earning his remuneration. Should the court grant injunctive relief, or leave the Rabbi to his remedy in damages for wrongful dismissal?
As the Rabbi submits, the injunction he seeks is not, in terms or effect, an order for the maintenance of a contract of personal service, but one to restrain implementation of a decision to terminate a contract made contrary to an express restriction on the manner of exercise of the power of termination. The effect of the injunction would be to restrain the termination of the contract in the absence of those restrictions being satisfied, but not to affect any fresh termination upon the conditions precedent to it being met. Such a distinction - between restraining a particular purported termination of employment, and restraining any termination of the employment - has been recognised in cases, typically where the decision-making process which culminates in the purported termination is defective, so that the decision is vitiated. [13] While the termination of a mere contract of employment may not attract such relief, it will be otherwise where the employee has some additional personal right, in particular in the nature of procedural fairness, before termination. One circumstance in which this may occur is where the employee is more than a mere employee but holds an office, including an ecclesiastical office. [14] These principles were explained and applied by Jacobs J, as he then was, in Baker v Gough: [15] The questions still remain whether cl. 10(a) of the School Chapels and Chaplains Ordinance can be regarded as giving the plaintiff any personal right at law and whether, if that be so, the right can be enforced in a court of equity. To some extent these questions overlap and it is convenient to treat them together. It has been strenuously argued on behalf of the defendants that the plaintiff is given no personal right except a right arising out of any contract existing between him and the school council, and it is further argued that this type of right which he possesses cannot be enforced in a court of equity. If the defendants are correct in the submission that the only right of the plaintiff is a right arising out of a contract between himself and the council that they will before dismissing him give him the opportunity to be heard, then that right is one which merely arises out of the contract of master and servant existing between the plaintiff and the council and a breach by the council of that contractual term, although it might give rise to a right to damages, could not prevent the termination of the contract by the dismissal; of the plaintiff and could not entitle the plaintiff to any declaration that he continued in his office or indeed to any relief in this Court. I do not think it is necessary to refer to any authority in support of such a proposition.
It may be doubted whether, nowadays, equity would decline to recognise a claim for relief in respect of a decision to terminate a contract without affording an opportunity to be heard, where the contract stipulated for such an opportunity. But in any event, Jacobs J held that the relationship was not merely one of personal service, but that the plaintiff had personal rights derived from the Ordinances. [16] Notably, his Honour did not see the ordinances as operating by way of public law, but as being superimposed on the contract to create a private right to a hearing, denial of which vitiated the decision. Further, his Honour explained that although the contract was one of personal service, the effect of an injunction restraining the school council from acting on an invalid resolution of dismissal was not tantamount to decreeing specific performance of a contract of personal service, but only to prevent the council from acting on the particular purported resolution. [17]
In this case, the contractual incorporation of Halacha and Hazakah has an effect analogous to that of the ordinances in Baker v Gough. The consequence is that the Rabbi had and has a personal right, recognisable in equity, to be heard in a properly convened Din Torah before any dismissal. Such a right is amenable to protection by injunction. This, coupled with the circumstances that what is involved is not dismissal from mere employment but removal from an ecclesiastical office, that no real question of personal trust and confidence is concerned, and that no requirement for continuing supervision arises, persuades me that, but for the impact of insolvency and administration, this would be a case for injunctive relief.
The remaining issue, then, is the impact of the circumstance that the company is in insolvent administration. In Gutnick v Bondi Mizrachi Synagogue, [18] White J acknowledged that the most substantial point in opposition to the grant of interlocutory injunctive relief was that, on the balance of convenience, such relief ought not be granted because of the defendant's financial position, its President having deposed that if the resolution terminating Rabbi Gutnik's employment on grounds of redundancy was not passed, it was likely that the Board would resolve to appoint an administrator. That potential obstacle was sufficiently answered by the Rabbi's undertaking that he would waive his entitlement to remuneration and emoluments until the final decision of a Din Torah. However In that case there was a dispute as to whether the rabbi was entitled to Hazakah at all, which question it was contemplated would be submitted to arbitration by a Din Torah. And while insolvency was foreseeable, the company was not in administration.
In the present case, Rabbi Milecki proffered undertakings to the effect that he would forego remuneration until any Din Torah had been convened and adjudicated, or if none were convened, until three weeks notice given by him had expired. However, it not having been seriously suggested that the Rabbi has failed to perform his rabbinical duties such as to warrant dismissal in conformity with Hazakah, there is no real prospect of that question proceeding to a Din Torah: the administrators have no intention of making application for a Din Torah; and there is no reason why the Rabbi would himself seek one. Accordingly, for practical purposes the undertaking amounts in effect only to one not to claim remuneration for three weeks. Even so, in the context of an administration under Part 5.3A, a period of three weeks would see the administration through to the s 439A meeting, which is not without significance.
In AMEC Properties Ltd v Planning Research & Systems plc, [19] the Court of Appeal (Balcombe and Mann LJJ) held that the principle that a contract for the grant of an interest in land would normally be specifically enforced was not subject to an exception in the case of an application by a prospective lessor for enforcement of an agreement for lease against a hopelessly insolvent lessee. What was sought was specific performance of the agreement to grant a lease - not of the lease itself - and the effect of the decree was to require the grant and acceptance of the lease, as distinct from the payment of rent under it. However, this meant that the lessee would incur an obligation to pay rent under the lease, in default of which the lessor would in due course be able to prove for unpaid rent in a liquidation, which might well be a larger claim than one for damages for breach of the agreement to grant a lease. The case is instructive, because the effect of the order was to cause the lessee to incur an obligation under the lease to pay periodic rent which it could not possibly pay, at least until the company went into liquidation when the lease might be disclaimed; that is somewhat akin to the obligation to pay wages. Moreover, the lessee was in administrative receivership, the equivalent of voluntary administration under Part 5.3A. The Court was adamant that, particularly in the context of an agreement that had been partly performed, insolvency (short of liquidation) and the potential impact on the rights of unsecured creditors was no reason to decline the remedy of specific performance.
In the present case, an injunction restraining the administrators from giving effect to the purported termination is not equivalent to specific performance of the contract, nor is it an order to pay the Rabbi's remuneration, although a contractual obligation to pay his remuneration would subsist. If, for want of adequate resources, the administrators are unable to and do not pay his remuneration, the Rabbi's remedy would not lie in contempt, but (as with any other unpaid employee) in an action on the contract for unpaid remuneration. During the administration, any such action is stayed by s 440D. But in the event the company goes into liquidation, the Rabbi would have a provable claim for the unpaid arrears, as well as a claim for damages for wrongful dismissal arising upon the appointment of a liquidator, in which prima facie his damages would be the present value of his future contractual entitlements for his life expectancy, reduced by provision for his duty to mitigate by seeking an alternative post.
While the Rabbi may well be relegated to a claim for damages in the event of a winding up, there is no reason why his rights under a long-established contract should be discounted at this stage, any further than statute requires. The company is in administration, not liquidation. While administration affords some temporary protections, it does not excuse the company from performing its contracts. The administrators having consented under s 440D(1)to the Rabbi bringing his cross-claim, there is nothing inconsistent with the scheme of Part 5.3A in declaring, recognising and enforcing his legal rights.

Conclusion

My conclusions may be summarised as follows.
The Rabbi's contract includes Hazakah, by implication if not by incorporation. The status of voluntary administration under Part 5.3A has no special significance for the company's contractual obligations, and the company was not entitled to terminate the Rabbi's employment, for redundancy or otherwise, in the absence of a finding of a Din Torah that there were grounds for termination. The purported termination was therefore a wrongful dismissal. The Rabbi has not accepted the repudiation, and the contract remains on foot. The infringement of his procedural right to a Din Torah, coupled with the nature of his employment in an ecclesiastical office, and the absence of issues of personal trust and confidence or any necessity for continual supervision by the court, means that absent the question of insolvency, this would be an appropriate case for injunctive relief. The circumstances of insolvency, short of liquidation, do not justify withholding the specific relief which would otherwise be granted.
Subject to any submissions which counsel may wish to make as to the form of the orders, I propose to make orders to the following effect, which are modelled on those made in Baker v Gough and in Robb v Hammersmith and Fulham London Borough Council. However, it should be understood that they do not extend to an order that requires, under pain of contempt, payment of the Rabbi's remuneration; the obligation to pay remains contractual, not pursuant to a court order, and the Rabbi's remedies for non-payment likewise remain founded on the contract.
The Court therefore orders that: 1. the decision of the plaintiffs/cross-defendants to terminate the employment of the defendant with effect from 26 April 2017 is declared to be void, by reason that no properly constituted Din Torah had determined in accordance with Halacha that the termination of the Rabbi's contract was justified on a ground recognised in Halacha; 2. the plaintiffs/cross-defendants be restrained from giving effect to their said decision and treating the defendant as other than continuing to be in the employment of the plaintiffs unless and until a properly constituted Din Torah has determined in accordance with Halacha that the termination of the Rabbi's contract is justified on a ground recognised in Halacha; 3. the plaintiffs/cross-defendants pay the defendant's/cross-claimants costs.

Endnotes

Cf Re THO Services Ltd [2016] NSWSC 509.
See, for example, Reynolds v Southcorp Wines Pty Ltd (2002) 122 FCR 301; [2002] FCA 712 at [37].
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [62].
Re General Rolling Stock Co (Chapman's Case) (1866) 1 Eq 346; Re Oriental Bank Corp (MacDowall's Case) (1886) 36 Ch D 366; Re Intercolonial Smelting Co (1887) 13 VLR 896; Re City Cold Storage Co (1916) 30 DLR 574; Re Associated Dominions Assurance Society Ltd (1962) 109 CLR 516 at 518 (Taylor J).
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 465-6; Tullett Prebon (Australia) Pty Ltd v Purcell [2008] NSWSC 853; 175 IR 414 at [29]-[31].
JC Williamson Ltd v Lukey (1931) 45 CLR 282 at 297-8 (Dixon J); Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 428; Engel v Adelaide Hebrew Congregation Inc (2007) 98 SASR 402 at [20] (Doyle CJ); see also Heydon, Leeming and Turner, Meagher, Gummow & Lehane's Equity Doctrines & Remedies, 5th Ed, LexisNexis (2015), at [20-055].
Turner v The Australian Coal and Shale Employees' Federation (1984) 6 FCR 177 at 192-3; Gregory v Philip Morris Ltd (1988) 80 ALR 455 at 481-2.
As 'Halacha' is a Hebrew word, expert evidence is admissible as to its meaning [Rankin v Scott Fell & Co (1904) 2 CLR 164 at 172-173 and 176] and, being church law, as to its content [Metropolitan Petar v Mitreski [2009] NSWSC 106 at [115]-[116]].
Engel v Adelaide Hebrew Congregation Inc (2007) 98 SASR 402 at 409 [36] per Doyle CJ (with whom Bleby and Vanstone JJ agreed); cf Shamil Bank of Bahrain EC v Beximco Pharmaceuticals [2004] 1 WLR 1784.
[2004] 1 WLR 1784 at [51].
[2008] QB 195.
[2004] 1 WLR 1784 at [52].
Tradition Australia Pty Ltd v Gunson (2006) 152 IR 395 at [25]; cited in Gutnick v Bondi Mizrachi Synagogue (2009) 193 IR 191 at [34]; see also Irani v Southampton and South West Hampshire Health Authority [1985] IRLR 203; Robb v Hammersmith and Fulham London Borough Council [1991] ICR 514.
See Heydon, Leeming & Turner, Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 5th ed, at [21-145]; Davies v Presbyterian Church of Wales [1986] 1 WLR 323 at 329; Gutnick v Bondi Mizrachi Synagogue (2009) 193 IR 191 at [33]. While there is a dictum of Doyle CJ, with whom Bleby and Vanstone JJ agreed, in Engel v Adelaide Hebrew Congregation Inc (2007) 98 SASR 402 at [20], [45], that an Australian court would not specifically enforce an entitlement to act as a Rabbi, White J in Gutnik v Bondi Mizrachi Synagogue (2009) 193 IR 191 at [29] observed that the grounds for that statement were not self-evident.
(1964) 80 WN(NSW) 1263 at 1274-5.
(1964) 80 WN(NSW) 1263 at 1275-6.
(1964) 80 WN(NSW) 1263 at 1277.
(2009) 193 IR 191 at [36].
[1992] 1 EGLR 70.

Amendments 22 June 2017 - Typographical errors [23] and [39] 23 June 2017 - Further typographical error [43]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 June 2017

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