De Varda and Tov-Lev v The Board of Directors of The Strathfield and District Hebrew Congregation Ltd & Anor

Judgment 1By Notice of Motion filed 11 October 2012, two of the nine persons named as the First Plaintiffs in these proceedings, Mr Joseph de Varda and Mr David Cliffe, and the Second Plaintiff, Rabbi Dr Samuel Tov-Lev, seek orders extending the time for compliance with certain orders made by Hallen AsJ on 4 November 2011, about 12 months ago, for an application for leave to file amended pleadings in the proceedings; that the Plaintiffs be granted leave to file a Further Amended Summons and Further Amended Statement of Claim; and that all previous costs orders be stayed until the determination of the proceedings. 2The First Defendant to the proceedings is several persons who claim to be the board of directors of the Third Defendant, The Strathfield and District Hebrew Congregation Limited ("Congregation"). The persons comprising the First Plaintiff also claim, or previously claimed, to occupy that position. By Notice of Motion filed on 24 October 2012, the First Defendant seeks an order that the Plaintiffs' Notice of Motion be dismissed pursuant to UCPR r 13.4(1). That Rule provides for the dismissal of any claim for relief in proceedings that are frivolous or vexatious, or where no reasonable cause of action is disclosed or the proceedings are an abuse of the Court's process. It is unlikely to be necessary to determine the Defendants' Notice of Motion if the Plaintiffs' Notice of Motion fails on its merits. History of the proceedings 3It is first necessary to set out something of the history of the proceedings. It appears that, in late 2010, the First Defendant advised Rabbi Tov-Lev of the termination of his role as Rabbi of a Synagogue at Strathfield conducted by the Congregation and, in October 2011, Rabbi Tov-Lev was served with a notice of termination of tenancy in respect of the occupancy of a house associated with the Synagogue. 4The Proceedings were commenced by Summons in June 2011. A Statement of Claim was then filed and an Amended Statement of Claim was filed in October 2011. The Plaintiffs sought a wide range of relief in the proceedings, including that the Congregation and its accountant produce for forensic examination financial accounts and records; a mandatory order that the Synagogue at Strathfield be preserved against sale and/or destruction and remain open for religious services; an order that Rabbi Tov-Lev have the rights to carry out his duties under the jurisdiction of Jewish religious law; and relief for oppression. The relief sought was based, inter alia, on a claim that a purported election on 1 May 2011 was contrary to the articles of association of the Congregation and there were various other deficiencies with an annual general meeting on that date. 5On 4 November 2011, Hallen AsJ ordered that the Amended Statement of Claim be struck out and directed that no further Statement of Claim be filed without the consent of each Defendant or the leave of the Court and that any application for leave be filed on or before 1 December 2011. His Honour also ordered the Plaintiffs to pay the Defendants' costs of the motion. Hallen AsJ recorded in his judgment that Counsel for the Plaintiffs had conceded before him that the Amended Statement of Claim was bad in form, and his judgment indicated that he had reached the same view on the merits. The retainer for Counsel for Mr de Varda and Rabbi Tov-Lev was terminated by them during the course of the hearing before Hallen AsJ on that date. 6On 1 December 2011, the Plaintiffs filed a Notice of Motion seeking to set aside the orders of Hallen AsJ. On 9 December 2011, Bergin CJ in Eq directed that that Notice of Motion not proceed until the Plaintiffs had obtained the services of a lawyer for the purpose of assisting them in the future conduct of the proceedings. 7By 15 February 2012, Mr de Varda (who was seeking to represent the other persons constituting the First Plaintiff) and Rabbi Tov-Lev were again no longer represented by legal representatives in the proceedings. On 15 February 2012, Nicholas J dismissed the motion seeking to set aside the Order made by Hallen AsJ striking out the Amended Statement of Claim. On 16 February 2012, Nicholas J dismissed a motion filed by Rabbi Tov-Lev seeking referral of the proceedings to the Director of Public Prosecutions and ordered the payment of the costs of the motion on an ordinary basis. (As I will note below, Mr de Varda similarly sought referral of the proceedings to the Director of Public Prosecutions in the course of submissions before me.) Nicholas J granted leave for the Defendants to make an application that costs be assessed other than on an ordinary basis, by 4pm on 24 February 2012. No such application was made and the order for costs on the ordinary basis took effect. Nicholas J also made orders that the proceedings be dismissed, by reason of circumstances including the nine persons constituting the First Plaintiff's failure to obtain and continue to retain legal representation. His Honour also made an order under UCPR Pt 12 r 10 that, should any of the Plaintiffs commence further proceedings against the Defendants on the same or substantially the same causes of action or for the same or substantially the same relief, then such proceedings be stayed until those costs were paid. 8At this point, these proceedings had been dismissed. Section 91 of the Civil Procedure Act 2005 (NSW) provides that the dismissal of the proceedings would not prevent the Plaintiffs from bringing new proceedings or claiming the same relief, subject to the terms on which the dismissal was made, namely that new proceedings would be stayed pending the payment of costs for which the Plaintiffs were liable in respect of these proceedings. 9On 27 February 2012, the Plaintiffs filed a Notice of Intent to appeal from the orders of Nicholas J. An application for leave to appeal may have been required, if the orders made by Nicholas J were properly characterised as interlocutory in character. In any event, the Plaintiffs did not proceed with any such appeal. 10Proceedings were then brought by the Congregation in the Consumer, Trader & Tenancy Tribunal ("CTTT") seeking to terminate a tenancy under which Rabbi Tov-Lev occupied the house associated with the Synagogue. Rabbi Tov-Lev appears to have contested the validity of various decisions made or allegedly made by the Congregation in the proceedings before the CTTT. On 3 September 2012, the CTTT issued its decision terminating Rabbi Tov-Lev's tenancy. On 12 September 2012, Rabbi Tov-Lev applied for a rehearing under s 68 of the Consumer, Trader & Tenancy Tribunal Act. On 13 September 2012, the Chairperson of the CTTT stayed the order for possession of the premises and, on 28 September 2012, lifted that stay and dismissed the application for a rehearing. 11On 11 October 2012, some two weeks after the dismissal of Rabbi Tov-Lev's application for a rehearing in the CTTT and some nine months after dismissal of these proceedings, Mr de Varda, Mr Cliffe and Rabbi Tov-Lev filed the notice of motion seeking the orders to which I referred above. The Plaintiffs were at that time represented by solicitors; those solicitors had ceased to act, in circumstances that are disputed, by the time the motion was listed before me. The possession order granted by the CTTT was apparently further stayed by the CTTT for a period, following the filing of the motion in this Court on 11 October 2012, but that stay later ceased to have effect. 12It appears that steps were taken by the Sheriff in respect of the CTTT's order for possession of the house previously occupied by Rabbi Tov-Lev on 6 November 2012. On that date, an application initially made to my Associate by Mr De Varda concerning that matter was heard by the Common Law Duty Judge. When the matter was again listed before me on 8 November 2012, I made an order, by consent of the First Defendant, providing for the First Defendant to provide reasonable access by Rabbi Tov-Lev to that house to allow him to collect his personal documents and personal belongings on 9 November 2012. Identity of the Applicants 13With that background, I should now note several preliminary matters that arose in the course of the hearing before me. 14Mr de Varda, Mr Cliffe and Rabbi Tov-Lev are no longer represented by solicitors. Mr Cliffe has not appeared in respect of the application, either when it was part heard on 2 November 2012 or on the second day of hearing on 8 November 2012. I declined leave for Mr de Varda to represent Mr Cliffe, because Mr de Varda is not a solicitor and I was concerned that such representation would expose Mr Cliffe to the risk of an adverse costs order in circumstances where it was unclear whether he was aware of or content to assume that risk. Accordingly, although the proceedings were commenced by nine individuals named as the First Plaintiff and Rabbi Tov-Lev as the Second Plaintiff, and the Notice of Motion was brought in the names of Messrs de Varda and Cliffe and Rabbi Tov-Lev, it is now pursued only by Mr de Varda and Rabbi Tov-Lev. 15During the course of the hearing on 8 November 2012, Mr de Varda and Rabbi Tov-Lev contended that Mr Cliffe could not be present on that date because of illness. After I had reserved judgment, Rabbi Tov-Lev delivered to the Court a medical certificate dated 8 November 2012 stating that Mr Cliffe had attended a medical centre on that date because of migraine and was "medically unfit to attend work/school/university". It was unclear from that medical certificate whether the doctor who gave it was aware that it was to be relied on in these proceedings or had considered whether Mr Cliffe was fit to attend Court, as distinct from work, school or university. The medical certificate was not, in any event, properly in evidence. 16Second, when the matter was first listed before me on 2 November 2012, Mr de Varda and Rabbi Tov-Lev indicated that they wished further to amend the Summons and Further Amended Statement of Claim that they sought leave to file, beyond the version which they had sought leave to file by the motion originally filed on 11 October 2012. I made orders on 6 November 2012 directing Mr de Varda and Rabbi Tov-Lev to provide any Further Amended Summons or Further Amended Statement of Claim which they seek leave to proceed with (emphasis added) to the Defendants by their solicitors and also to include them in a bundle of documents which I directed the parties to provide to me. That direction was not a grant of leave to file a Further Amended Summons or Further Amended Statement of Claim; to the contrary, it expressly referred to documents as to which Mr de Varda and Rabbi Tov-Lev sought leave to proceed with. An order granting leave to file the Further Amended Summons or Further Amended Statement of Claim was the substantive order sought in the motion, and could not be granted in proceedings which had previously been dismissed unless the Court was satisfied that those proceedings should be reopened and that the proposed Amended Summons and Proposed Further Amended Statement of Claim were in a form which warranted the grant of such leave. 17Nonetheless, on 6 November 2012, each of Mr de Varda and Rabbi Tov-Lev filed documents titled Second Further Amended Summons and Second Further Amended Statement of Claim in the Registry that stated that they were amended pursuant to leave granted by the Court on 2 November 2012. That statement was not correct, since no such leave had been granted, and those documents should not have been filed. It remains necessary to determine, on the merits, whether leave should now be granted to file those documents. If that leave is not granted, they should be struck out to preserve the integrity of the Court's processes. 18Third, Rabbi Tov-Lev and Mr de Varda sought a further adjournment in the course of the proceedings before me to permit the issue of subpoenas to numerous persons associated with the First Defendant to attend to give evidence. They submitted they had instructed their former solicitors to issue subpoenas to those persons to attend for cross-examination, those subpoenas had not been issued and those persons were not present in Court. I did not consider that a further adjournment for that purpose would be consistent with s 56 of the Civil Procedure Act, where, had those subpoenas been issued, it is unlikely the Court would have permitted examination (or cross-examination) as to the issues in the substantive proceedings, where the application before me is a narrower application as to whether Mr de Varda and Rabbi Tov-Lev should be permitted now to file amended pleadings. 19Fourth, I have noted above that Nicholas J had previously dismissed a motion filed by Mr de Varda and Rabbi Tov-Lev seeking a referral of the proceedings to the Director of Public Prosecutions. No further order of the same kind was sought in the motion which was listed before me. However, allegations of misconduct were made in the course of oral submissions against numerous individuals and Mr de Varda and Rabbi Tov-Lev pressed for a referral of the proceedings to the Director of Public Prosecutions. During the course of oral submissions before me, submissions were made, inter alia, that minutes of meetings relied on by the Congregation in the CTTT were not a true record and the documents on which the Congregation relied in these proceedings were fabrications, and the matter should be referred to the Director of Public Prosecutions because of conduct constituting bribery, fabrication of documents and fraud. I do not consider that it would be appropriate, in an interlocutory application of this kind, to make findings of a character that would warrant a reference of a matter to the Director of Public Prosecutions. It is, of course, open to Mr De Varda and Rabbi Tov-Lev to make any approach to investigative or prosecutorial bodies that they consider appropriate. The evidence and submissions 20Mr de Varda and Rabbi Tov-Lev relied on affidavits of Mr de Varda affirmed 21 August 2011, 29 August 2011, 7 November 2012 and Rabbi Tov-Lev affirmed 21 August 2011 and 31 October 2012. They also relied on several other affidavits of persons who had originally been among the group of persons named as the First Plaintiff. In the interests of completing the matter within a reasonable time, the Defendants did not object to any part of those affidavits, while reserving their right to do so if they are relied upon in any subsequent proceedings. The vast majority of those affidavits and the submissions of Mr de Varda and Rabbi Tov-Lev related to the substance of the relief sought in the proceedings, seeking to demonstrate the impropriety and invalidity of the Defendants' conduct. 21Mr de Varda's affidavit dated 21 August 2011 is directed to the merits of the underlying dispute in the proceedings and particularly a dispute as to the identity of the persons who are presently the Board of the Synagogue. The affidavit dated 29 August 2011 is directed to the same matter, and alleges, inter alia, that false and misleading information was provided by the Defendants, including the Congregation's auditor, to the Australian Securities and Investments Commission. Mr de Varda's affidavit dated 7 November 2012 is directed to subsequent events in relation to the dispute as to the validity of the annual general meeting held in May 2011. Rabbi Tov-Lev's affidavit dated 21 August 2011 is also directed to the underlying merits of the dispute and, in particular, contends that the Board of the Congregation has reached an improper decision to close the Synagogue. Rabbi Tov-Lev's affidavit dated 31 October 2012 sets out allegations that the Congregation relied on false documents in proceedings before the CTTT and also deals with the dispute as to the validity of annual general meetings held by the Congregation. Affidavits of the other persons constituting the First Plaintiff deal with the history of the Synagogue and concerns of those persons as to the closure of the Synagogue and the removal of Rabbi Tov-Lev. Mr Cliffe's affidavit also deals with circumstances relating to a flood insurance claim in respect of the Synagogue and suggests that the treatment of that claim involved the diversion of funds from the Synagogue to another entity. 22The Defendants rely on an affidavit of their solicitor, Mr David Austin, dated 7 February 2012, dealing with the early history of the proceedings; an affidavit dated 7 November 2012 annexing documents that are identified as minutes of annual general meetings of the Congregation held on 1 May 2011, 19 February 2012 and 30 September 2012; and an affidavit dated 24 October 2012 providing an outline of the history of the proceedings in this Court and the CTTT. 23The issue before me is not, ultimately, the merits of the claims made by the Plaintiffs in the proceedings, or whether the Plaintiffs or some of them should be entitled to pursue those claims, but whether they should be entitled to reopen these proceedings, and file amended pleadings in them, so as to pursue those claims in these proceedings without meeting the costs orders already made against them in these proceedings. At the commencement of substantive oral submissions before me on 8 November, I indicated several issues as to which I was likely to be assisted in submissions, including: