Live Group Pty Ltd & Anor v Rabbi Ulman and Ors

Supreme Court of NSW|2018-03-19|Before: Sackar J

Background facts

I will not rehearse in detail the factual material concerning this matter, although I have considered the facts in detail outlined in the original judgment at [4]-[69].
In addition to their submissions, the Defendants provided four affidavits: 1. Affidavit of Rabbi Gutnick made 7 March 2018; 2. Affidavit of Rabbi Ulman made 7 March 2018; 3. Affidavit of Rabbi Chriqui made 2 March 2018; and 4. Affidavit of Rabbi Schlanger made 7 March 2018.

The 'broader' category of contempt

As referred to in the original judgment at [98]-[105], the authorities recognise the distinction between contempt arising from conduct that interferes with the administration of justice in a particular case, and interference with the administration of justice generally.
In Attorney-General v Leveller Magazine Ltd [1979] AC 440; [1979] 1 All ER 745, Lord Diplock observed at 449: My Lords, although criminal contempts of court may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court not the individual court or judge who is attempting to administer it.

Penalty for contempt

The underlying rationale for the exercise of the punishment for contempt is to protect the effective administration of justice: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107.
The mechanics that provide for a penalty for contempt include but are not limited to Part 55 of the Supreme Court Rules 1970 (NSW) and the Crimes (Sentencing and Procedure) Act 1999 (NSW). The procedure of Part 55 of the Supreme Court Rules 1970 (NSW) must be adhered to, including rule 55.7 requiring the filing of a Statement of Charge for criminal contempt, consistent with the principle a person accused of contempt is entitled to know the gist or substance of the charges against him or her: Coward v Stapleton (1953) 90 CLR 573 at 579-80.
Part 55 of the Supreme Court Rules 1970 (NSW), specifically rule 13, also provides: 55.13 PUNISHMENT (1) Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both. (2) Where the contemnor is a corporation, the Court may punish contempt by sequestration or fine or both. (3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.
This rule is declaratory of the Court's power and does not exhaust that power: Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd [2017] NSWSC 118 at [30] per Black J; Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314 per Kirby P; Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280 at [14] per Meagher JA.
Contempt of court is a distinctive offence attracting remedies which are sui generis, in which the chosen remedy must be effective, no more but no less: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 115 per Gibbs CJ, Mason, Wilson and Deane JJ citing Morris v Crown Office [1970] 2 QB 114 at 129.
Rule 13 of Part 55 notes that the powers of the Court for contempt include suspending the punishment, which it would otherwise order, upon conditions including good behaviour or performance of terms of the security: Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 318 per Kirby P.
More generally, as observed by Ward CJ in Eq in Mirus Australia Pty Ltd v Gage [2018] NSWSC 35 at [7]-[10]: General sentencing principles [7] Other than in relation to the issue of costs, there was no real dispute between the parties as to the general sentencing principles to be applied. Mr Gage accepts that the finding of contempt against him was a finding of criminal contempt and that the underlying rationale of sentencing for contempt (be it civil or criminal contempt) is to protect the effective administration of justice (see Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107; [1986] HCA 46). In Kazal v Thunder Studios Inc (California) [2017] FCAFC 111, the Full Court of the Federal Court said (at [97]): contempt proceedings are essentially protective in nature as to the judicial function and the role of the courts, even if they also serve to vindicate private interests and rights. Contempt proceedings are therefore to be viewed as essential in facilitating courts being able to function properly. ... That view of contempt proceedings can be seen to permeate longstanding sentencing authority in this area. [8] In Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279 (an appeal from which was dismissed by the Court of Appeal in Matthews v Australian Securities and Investments Commission [2009] NSWCA 155), Barrett J, as his Honour then was, noted the following as being matters relevant when sentencing for contempt (see [26]-[27]): the seriousness of the contempt proved; the contemnor's culpability; the reason or motive for the contempt; whether the contemnor has received, or sought to receive, a benefit or gain from the contempt; whether there has been any expression of genuine contrition by the contemnor; the character and antecedents of the contemnor; the contemnor's personal circumstances; the need for deterrence of the contemnor and others of like mind; and the need for denunciation of contemptuous conduct. This was referred to with apparent approval by the Court of Appeal (Tobias JA at [129]-[130], [137], [141], Basten JA agreeing at [181], Campbell JA agreeing) and by the Full Court of the Federal Court in Kazal (at [102]), the Court there noting that it was not an exhaustive list of potentially relevant matters. [9] There is no statutory maximum penalty (whether by way of fine or imprisonment) for the common law offence of contempt (see Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314 at 320). [10] The various alternatives to imprisonment for which the Crimes (Sentencing Procedure) Act provides include: a community service order (s 8); a good behaviour bond (s 9); dismissal of the charges, if the Court is satisfied that it is inexpedient to inflict any punishment other than nominal punishment (s 10); conviction with no other penalty (s 10A); and a suspended sentence of imprisonment (s 12).
Her Honour also observed at [70]-[71]: [70] As to the size of the fine, I note first that although the Court may derive some assistance from an examination of prior decisions, they do not provide "any safe guide to the proper tariff or punishment for contempt of court … because both the nature of the contempt itself and its consequences vary so greatly in different cases" (see Wood v Galea (1996) 84 A Crim R 274 at 277 per Hunt CJ at CL; Principal Registrar of Supreme Court (NSW) v Tran [2006] NSWSC 1183; (2006) 166 A Crim R 393 at 401 [38] per Buddin J). [71] There is, moreover, a dearth of comparables. In Maniam No 2 (where there was repeated disobedience to a subpoena to attend and give evidence) the fine was $10,000, but that was back in 1992. More recently, a fine in that amount was imposed in Crane Distribution Ltd v Van Schellebeeck [2009] NSWSC 263 (where there was breach of an asset freezing order), in addition to an order restricting the defendant from taking any step in defence of the proceedings until the contempt was remedied. In Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd [2017] NSWSC 118, Black J imposed a fine of $50,000 for contempt of Court in circumstances where the respondent had caused a company to breach an undertaking to the court.
See also Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd [2017] NSWSC 118 at [30]-[39] per Black J; Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at [26]-[29].
In Clipsal Australia Pty Ltd v CAN 134 468 205 (formerly Clipso Electrical Pty Ltd) (No 5) [2017] FCA 1584 Bromwich J noted at [57]-[58]: [57] It is well accepted that the limited financial means of a contemnor should not prevent the imposition of a significant fine of sufficient magnitude to vindicate the Court's authority and to deter others from engaging in similar conduct: see Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254; 215 ALR 281 at [9]-[10] and the cases there cited. A penalty no greater than is necessary to achieve the objective of general deterrence will not be oppressive, albeit being a principle borrowed from a trade practices context in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 293F per Burchett and Kiefel JJ. [58] Weighing up the competing considerations, I have concluded that, in addition to a suspended sentence, the quantum of the fine that is necessary to advance the interests of justice, denounce Mr Abdulkader's conduct, punish him appropriately and to deter others in a like position, is $40,000. I am satisfied that while this will be a heavy burden for him, it will not be oppressive. It is what is necessary to deter such a blatant and serious contempt. However, he should have the amount of time he requested in evidence to pay that fine and also to pay the costs of the District Registrar.
The Plaintiffs submit that the sentencing process should be understood as the result of an 'instinctive synthesis'. The Plaintiffs referred to the judgment of Campbell J (as His Honour was then) in NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 at [68]: [68] A sentence for crime is arrived at as a result of an instinctive synthesis of multiple factors. It is, nonetheless, a judicial decision, because principles of law determine the factors that can properly be taken into account, and a judicial judgment can be made by an appellate court of whether the way in which those factors have been taken into account is within the range of legally permissible outcomes. The same applies to sentencing for contempt.
Upon these authorities it is therefore uncontroversial that the following are matters relevant when sentencing for contempt: 1. the seriousness of the contempt proved; 2. the contemnor's culpability; 3. the reason or motive for the contempt; 4. whether the contemnor has received, or sought to receive, a benefit or gain from the contempt; 5. whether there has been any expression of genuine contrition by the contemnor; 6. the character and antecedents of the contemnor; 7. the contemnor's personal circumstances; 8. the need for deterrence of the contemnor and others of like mind; and 9. the need for denunciation of contemptuous conduct.
These considerations are not exhaustive, and the decision of Rothman J in Scholefield Goodman (Australia) Pty Limited v Rutkowski [2018] NSWSC 19 at [18]-[26] provides further guidance as to the relevant principles of sentencing: [18] The Court has, on a number of occasions, described the principles relating to punishment for contempt. The jurisdiction of the Court arises from its status as a superior court of record. Contempt is a common law offence, punishment for which is an inherent power of a superior court of record. [19] The Supreme Court Rules 1970 ("SCR"), and in particular SCR Pt 55 r 13, provide that the Court may impose a penalty for contempt on an individual that includes committal to a correctional centre, or fine, or both. Further, the Court may issue orders for punishment on terms, including the suspension or part suspension of any term of imprisonment and impose conditions for good behaviour and the like. [20] There are, at least in theory, two types of contempt: civil and criminal. Criminal contempt is conduct that obstructs the administration of justice. Civil contempt is, essentially, the breach of an order or undertaking. However, where a breach of an order is deliberate or contumacious, and is, for that reason, a deliberate defiance or contumacious breach of the orders of a court, contempt that is otherwise civil is considered to be criminal in nature: Witham v Holloway (1995) 183 CLR 525 at 530; [1995] HCA 3. The delineation is often difficult. [21] Contumacious, wilful and deliberate disobedience of a court's order may be characterised as both civil and criminal conduct: Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69, per Beazley JA (as her Honour the President then was); Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21; Witham v Holloway, supra. [22] Civil contempt that is not a deliberate defiance or a contumacious breach will still affect the administration of justice. The purpose of imposing punishment for wilful disobedience of a court order is to discipline the offender and to vindicate the authority of the court: AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 at [112]. [23] Sentencing for contempt involves the usual principles of sentencing and requires the court to arrive at and impose a sentence appropriate to the gravity of the offence that was committed (objective seriousness) and the circumstances of the offender who committed it (subjective circumstances) taking into account all the purposes of sentencing. Those purposes include punishment; protection of society; personal and public deterrent; retribution; and reform: Veen v R (No 2) (1988) 164 CLR 465 at 476; [1988] HCA 14; and s 3A of the Crimes (Sentencing Procedure) Act 1999 ("the Act"). [24] In Veen (No 2), supra, the High Court said: the purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. [25] The process, often referred to as intuitive synthesis, is one in which the Court considers each of the factors as part of the objective and subjective circumstances to arrive at a result which seeks to achieve each of the purposes. [26] In dealing with the objective and subjective circumstances of the offence and the contemnor, the Court may have regard to the provisions of s 21A of the Act, although most of those criteria are factors to which a sentencing court would, even in the absence of s 21A of the Act, have regard. The Court has a wide range of sentences that it may impose for contempt: NCR Australia v Credit Connection [2005] NSWSC 1118.
At paragraph [28], His Honour also noted with respect to relevant considerations in sentencing for contempt: [28] In relation to contempts, as with other offences, the sentence to be imposed must take account of the nature of the contempt committed: Commission for Fair Trading v Rixon (No 3) [2014] NSWSC 1279, per Garling J. Such circumstances include: the nature and circumstances of the contempt; the impact or likely impact of the contempt on the administration of justice; the extent of the offender's culpability for the conduct; the need to deter the offender and others from engaging in contempt; whether a finding of contempt has been previously made; whether contrition or remorse is displayed and an apology proffered; and the financial and personal circumstances of the offender when a fine is being sought: Paccar Financial Pty Limited v Ian Menzies & Colleen Menzies (No 2) [2015] NSWSC 1622.

Genuine expression of contrition

As to whether there has been any expression of genuine contrition by the contemnor in sentencing, the New South Wales Court of Criminal Appeal has highlighted how the absence of contrition cannot act as an aggravating factor within the context of sentencing and the Crimes (Sentencing Procedure) Act 1999 (NSW). More specifically, in Roff v R [2017] NSWCCA 208 the Court of Criminal Appeal observed at [18]-[25]: [18] Although expressed as a single ground, there were in substance two separate arguments contained within it. The first was that his Honour had used the absence of any remorse on the part of the applicant to impose a more severe sentence. [19] It was common ground that the absence of remorse and denying the knowledge or whereabouts of the deceased's body could not operate to aggravate the term of sentence. In Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [22] it was stated that: a person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. [20] See also (by way of example) Hadchiti v R [2016] NSWCCA 63 at [171]-[172]. In R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [5], this Court observed that Siganto affirmed the significance and validity of a distinction between not increasing a sentence by reason of a plea of not guilty and granting leniency by means of discount from pleading guilty. [21] There being no dispute as to the operation of principle, the only question arising on this ground was whether reading the reasons for sentence as a whole, and looking at their substance and not merely form (see for example Riggio v R [2015] NSWCCA 223 at [94]), the primary judge in fact relied upon the absence of remorse or acknowledgement of the crime as an aggravating feature. [22] The applicant submitted that this was the natural meaning of [51] which is reproduced above. The Crown's response was that the reasons were to be read as a whole, and that the absence of remorse should be regarded as a matter on which the primary judge relied so as to explain what was otherwise stated to be a heavier sentence. As it was put, the effect of the finding of remorse was "that this mitigating factor could not be made out and therefore could not operate to ameliorate the sentence". [23] Two considerations make this point one which is finely balanced. The first is that in [51] his Honour in terms identified as the second of the three principal reasons which led to his decision to impose a non-parole period which exceeded the statutory standard "the aggravating features referred to at [46]". It might fairly be said to follow, on a natural reading of this part of the reasons, that his Honour's reliance on the absence of remorse and acknowledgement which was the third of the three principal reasons was regarded by his Honour as not comprising an aggravating feature. [24] The second is the approach taken by s 21A(1) of the Crimes (Sentencing Procedure) Act, which requires a court imposing sentence to take into account both the aggravating factors referred to in subsection (2) and the mitigating factors referred to in subsection (3) insofar as they are relevant and known to the court. The subsections treat different factors differently. As it was put in the applicant's written submissions: Some of the mitigating factors set out under section 21A(3) of the Act reciprocally mirror the aggravating factors set out in section 21A(2). For example, the circumstances that the injury, emotional harm, loss or damage caused by the offence was substantial is an aggravating factor; while the circumstance that the injury, emotional harm, loss or damage caused by the offence was not substantial is a mitigating factor. Remorse is a mitigating factor pursuant to section 21A(3)(i), yet there is no reciprocal aggravating fator for the absence of remorse under section 21A(2). An offence is not aggravated by the fact that no remorse can be shown. If an offender wishes to rely upon remorse as a mitigating factor, the offender is required to prove it on the balance of probabilities. If there is no evidence of remorse, it follows that it is not a factor that can be taken into account in determining the objective seriousness of the offence or in any other way relevant to sentencing. [25] The distinction mandated by the structure of s 21A may seem to be a fine one. An offender who is found to be remorseful, in the particular way required by s 21A(3)(i), is entitled to the benefit of that finding in mitigation, and if other things are equal, may anticipate a lesser sentence than a co-offender who has not been found to be remorseful. Thus the absence of remorse may explain why a heavier sentence was imposed upon the co-offender, insofar as it has the consequence that the offender has not been able to establish the mitigating factor of remorse. However, as was common ground on appeal, regard may not be had to the absence of remorse in imposing a heavier sentence.
This decision was cited with approval in R v Ruttley (No 7) [2017] NSWSC 1582 at [55] per Payne J (as His Honour was recorded in this judgment).

Crimes (Sentencing Procedure) Act 1999 (NSW)

The Crimes (Sentencing Procedure) Act 1999 (NSW) also supplements the mechanisms noted in rule 55.13 of the Supreme Court Rules 1970 (NSW).
As noted by Black J in Admark Property Group, punishments for contempt of Court should take into account the same principles as are applicable to punishment for a crime. His Honour noted in principle a contempt of Court can be punished under the same range of penalties prescribed by the Crimes (Sentencing Procedure) Act 1999 (NSW): Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd [2017] NSWSC 118 at [32]; NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 at [23]-[25] per Campbell J (as His Honour was then).
The Crimes (Sentencing Procedure) Act 1999 (NSW) relevantly provides: 3A PURPOSES OF SENTENCING The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
The Court must not impose a sentence of imprisonment unless it is satisfied, having considered all available alternatives, that it is appropriate to do so (section 5). Other available penalties include home detention (section 6), intensive correction orders (section 7), community service orders (section 8), good behaviour bonds (section 9), dismissal of the charge and a conditional discharge (section 10), deferral of a sentence (section 11) and a suspended sentence (section 12).
Under the Crimes (Sentencing Procedure) Act 1999 (NSW) the Court may issue fines as an additional penalty to a good behaviour bond or fines as an additional or alternative penalty to imprisonment for offences dealt with on indictment (sections 14 and 15).
The Court has the general power to reduce penalties as provided by section 21 of the Crimes (Sentencing Procedure) Act 1999 (NSW): 21 GENERAL POWER TO REDUCE PENALTIES (1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term. (2) If by any provision of an Act or statutory rule an offender is made liable to imprisonment for a specified term, a court may nevertheless impose a sentence of imprisonment for a lesser term. (3) If by any provision of an Act or statutory rule an offender is made liable to a fine of a specified amount, a court may nevertheless impose a fine of a lesser amount. (4) The power conferred on a court by this section is not limited by any other provision of this Part. (5) This section does not limit any discretion that the court has, apart from this section, in relation to the imposition of penalties.
Given this power to reduce penalties, section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a Court is to take into account aggravating factors, mitigating factors and any other objective or subjective factor that affects the relative seriousness of the offence in determining the appropriate sentence for an offence. Relevantly for any genuine expression of contrition, one mitigating factor is listed in section 21A(3)(i) as: the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).
See also observations on the power of the courts to fine for findings of contempt: C J Miller, Contempt of Court (Oxford University Press, 3rd ed, 2000) 52-53; Ian Cram et al (eds), Borrie & Lowe: The Law of Contempt (LexisNexis, 4th ed, 2010) 582-584. Borrie & Lowe: The Law of Contempt relevantly observes at 583 (references omitted): Of course, in addition to the pecuniary penalties, those found guilty will also be liable for costs which themselves may exceed the fine. Indeed, in some cases the imposition of costs alone will be deemed sufficient penalty. In R v Border Television Ltd, R v Newcastle Chronicle and Journal Ltd, ex p A-G, for example, the Chronicle and Journal were ordered to pay two-thirds and Border Television one-third of the Attorney General's costs.
Given the outlined statutory formulations of the Court's power to sentence for contempt, a Court may choose to issue a range of sentences, including a reduced fine and a suspended fine subject to compliance with a condition. The Court has previously issued suspended fines subject to compliance with a condition, as occurred for example in Mirus Australia Pty Ltd v Gage [2018] NSWSC 35 at [68] per Ward CJ in Eq and Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 319 per Kirby P.

Costs

Costs orders may be made on an ordinary or indemnity basis: Civil Procedure Act 2005 (NSW) s 98(1).
Costs generally follow the event: Uniform Civil Procedure Rules 2005 (NSW) r 42.1. See also Hinch v Attorney-General for the State of Victoria (No 2) (1987) 164 CLR 15 at 89; McIntyre v Perkes (1988) 15 NSWLR 417 at 428.
The touchstone for departing from the general rule on costs is what is required to do justice between the parties: Gunns Ltd v Alisah (No 3) [2009] TASSC 103 at [29].
The fairness of any award of costs is also an important consideration, having regard to the responsibility of each party for incurring the costs: Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121] per Hodgson JA.
In Mirus Australia Pty Ltd v Gage [2018] NSWSC 35, Ward CJ in Eq observed at [84], supporting Her Honour's decision not to award an order of further indemnity costs in the specific circumstances of that case: [84] Costs remain in the discretion of the Court. I am not persuaded that there is an invariable practice in this regard nor that, as a matter of principle, there should be a costs order against the contemnor of a sentencing hearing occurring separate from the hearing of the contempt charge itself. In the present case, I am not persuaded that the costs of the sentencing hearing should be awarded against Mr Gage. I consider that the indemnity costs order imposed for the hearing of the contempt/strike out motions provides a sufficient sanction for the contempt, particularly in circumstances where Mirus' submissions on sentencing appeared to be redolent of a desire to punish Mr Gage not only for the deletions that occurred but also for the downloading of the information in the first place. While Mirus' condemnation of Mr Gage's actions, and his attempts to avoid discovery of his wrongdoing, is understandable, its stance on the sentencing hearing had an adversarial flavour. I have already attempted to make orders to ameliorate the forensic disadvantage Mirus has suffered by Mr Gage's conduct in striking out parts of his defence. I consider that a further indemnity costs order is not warranted.

Plaintiffs

The Plaintiffs submit that the appropriate penalty to be imposed on the Defendants, in consequence of the findings that the Defendants were guilty of contempt of court is a fine of $50,000.00 each for the First, Third and Fourth Defendants and a fine of $100,000.00 for the Second Defendant (Outline of Submissions [2]).
Referring to the Crimes (Sentencing and Procedure) Act 1999 (NSW) and the general law, the Plaintiffs referred to the aggravating and mitigating factors set out in section 21A of the Act and the nine (non-exhaustive) considerations relevant to sentencing as distilled by Barrett J (as he was then) in Australian Securities and Investments Commission v Matthews [2009] NSWSC 285. The Plaintiffs also referred to the decision of Black J in Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd [2017] NSWSC 118.
Distilling these principles, the Plaintiffs made submissions on the seriousness of the contempt, the Defendants' culpability, the reason or motive for the contempt, whether the Defendants have received or sought to receive a benefit or gain from the contempt, whether there has been any expression of genuine contrition by the Defendants, the character and antecedents of the Defendants, the Defendants' personal circumstances, the need for specific and general deterrence and the need for denunciation of contemptuous conduct (Outline of Submissions [16]-[40])
The Plaintiffs respectfully submit there has been no expression of genuine contrition by any of the Defendants, either to the Court or to the Plaintiffs, although I should note these written submissions occurred before the apology was proffered by the Defendants via their counsel (Outline of Submissions [28]).
The Plaintiffs submit these considerations and the circumstances of the case warrant the fines submitted by the Plaintiffs (Outline of Submissions [40]).

Defendants

The Defendants submit the protective purpose of the Court's jurisdiction in findings for contempt is wholly, or at least largely, served by the judgment and declarations already made by this Court (Outline of Submissions [1]).
The Defendants, accepting the principles set out by the Plaintiffs in their Outline of Submissions as relevant for sentencing for contempt, pointed particularly to the good character of the Defendants, their lack of any criminal intent, their belief that they were acting in accordance with their religious observations, the novel circumstances of the contempt and the fact that there is no risk of any similar contempt being committed by the Defendants again (Outline of Submissions [1]-[2]).
The Defendants note they have suffered significant embarrassment and distress as a result of being found guilty of contempt, including wide reporting of the decision in the Jewish press (Outline of Submissions [17]).
The Defendants, pointing to the above considerations as relevant matters, submit the findings of contempt made by this Court and associated declarations represent sufficient punishment and no further penalty should be imposed (Outline of Submissions [21]).
Alternatively, the Defendants submit (Outline of Submissions [22]): 1. No fine should be imposed on the Fourth Defendant Rabbi Schlanger; 2. Only a nominal fine should be imposed on the First, Second and Third Defendant; and 3. Those fines should be suspended pursuant to rule 55.13 of the Supreme Court Rules 1970 (NSW).
The Defendants submit that the two counts of contempt (Charge 2 and Charge 6) should be considered in their totality as they contain common elements (Outline of Submissions [24]).
In addition to written submissions, the Defendants also made oral submissions outlining nine propositions (T14/6-T15/25): 1. The Defendants are all persons of good character and reputation with a fine record of service to the community. 2. There is and can be no suggestion that they intended by anything they did to interfere with the administration of justice. 3. They did not have in mind at any relevant time that their conduct amounted to contempt. 4. Whilst they were wrong not to think that their conduct amounted to contempt, the honesty of their innocent state of mind cannot be doubted. 5. They were not motivated by any intention to interfere with the administration of justice. 6. They were not motivated by any personal gain. 7. The Defendants are all ordinary people with large families doing work that is not for financial gain. The Defendants did not submit that they were impecunious. 8. Whilst remorse or contrition is a mitigating factor, the absence of contrition or remorse is not a factor that can be taken into account in determining the objective seriousness of an offence or in any other way. 9. There is no need for specific or general deterrence in this case.
In addition, upon my remarks regarding any evidence of contrition or apology of the Defendants, and after a short adjournment, counsel for the Defendants proffered the following apology (T20/3-11): 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.

Plaintiffs

The Plaintiffs submit that it is appropriate that the Defendants pay the Plaintiffs' costs of the Statement of Charge on an indemnity basis (Outline of Submissions [46]) and the costs of those proceedings other than for the Statement of Charge on an ordinary basis (Outline of Submissions [48]).
The Plaintiffs pointed to the following factors (Outline of Submissions [44]): 1. The Defendants' conduct caused the institution of this proceeding; 2. The Plaintiffs' complaint were borne out, although they failed on the issue of justiciability, including that the Defendants did not afford natural justice; 3. Dissecting the proceeding on an issue by issue basis is not appropriate to this case; 4. The Plaintiffs have not raised issues that were unreasonable or improper.
Alternatively, the Plaintiffs submit if the Court is minded to reduce any award of costs with reference to an issue by issue basis, the appropriate order would be for the Court to order that any costs payable to the Plaintiffs only be reduced by a modest amount (for example 10%) to reflect that there has been overlap between issues in the proceeding that are subject of conflicting outcomes (Outline of Submissions [47]).
The Plaintiffs acknowledged that an award for costs can inform the calculation of the amount of a fine for penalty (T13/40-48).

Defendants

The Defendants submit the Plaintiffs should pay the Defendants' costs of the proceedings up to 14 July 2017, including the costs of the abandoned hearing of 23 June 2017 which were reserved (Outline of Submissions [31]).
From 15 July 2017 onwards, the Defendants submit each party should bear its own costs (Outline of Submissions [33]).
The Defendants submit such an order would act as a form of sanction for the contempt and should result in there being no order for the payment of the costs of the penalty hearing, noting the allegedly adversarial nature of the Plaintiffs' approach to penalty (Outline of Submissions [34]-[35]).

Evidence on penalty

As noted each of the Defendants put additional affidavit evidence on the question of penalty. Rabbi Gutnick gave oral testimony as well.

Rabbi Gutick

Rabbi Gutnick affirmed an affidavit dated 7 March 2018. In relation to the original proceedings before this Court, Rabbi Gutnick also affirmed four prior affidavits, dated 23 March 2017, 9 May 2017, 3 July 2017 and 28 August 2017. He was also cross-examined in court on 19 March 2018.
Rabbi Gutnick referred to his four prior affidavits in these proceedings and reiterated his biographical details.
Rabbi Gutnick then referred to his awareness of the fact that he holds a position of leadership within the Orthodox Jewish community, including as President of the Rabbinical Council of Australia and New Zealand and 'ambassador' for the organisation called 'Unchain My Heart' which helps Jewish women trapped in abusive relationships. He asserted he has always tried his best to use his position of leadership to improve the spiritual wellbeing and day-to-day lives of the people in his community.
Rabbi Gutnick explained that in Australia, Rabbinic courts have no power other than the power to issue religious sanctions, and how those sanctions are only effective for those who are concerned to adhere to the Jewish faith.
Rabbi Gutnick stated his enormous respect for the rule of law in Australia, which he outlined, is a fundamental tenant of the Jewish 'Halacha'. In particular, he outlined his respect for the way in which the civil authorities are able to assist vulnerable voiceless people and protect them against abuses of power. Rabbi Gutnick emphasised how this has always been an important aspect of his calling as a Rabbi.
Rabbi Gutnick described his advocacy for victims of child sexual abuse, in particular at the Royal Commission into Institutional Responses to Child Sexual Abuse, and his disagreement with the view amongst some adherents that 'Halacha' prohibited one Jew reporting a crime by another Jew to the authorities (known as 'mesirah').
Rabbi Gutnick outlined how as a Dayan and President of the then Organisation of Rabbis Australasia, he was the first religious leader to publicly apologise to victims of abuse for the failings of the clergy via a pastoral letter. He also outlined his continued support for victims of child sexual abuse.
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.

Charge 2

With respect to Charge 2, 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 stated, had Mr Barukh come to the directions hearing and told the Rabbis he wanted them to recuse themselves, they would have done so without question and assisted in procuring another Beth Din to hear the matter. Moreover, had Mr Barukh attended the directions hearing and stated his intention to go to a secular court, the Rabbis would have acquiesced and that would have been the end of it. Rabbi Gutnick stated although the Beth Din could theoretically have imposed sanctions, it would not have done so.
Rabbi Gutnick reiterated the Defendants would not have taken any steps to stop Mr Barukh, except, importantly, from perhaps reminding Mr Barukh of his religious obligations or punishing him.
Rabbi Gutnick outlined how the Defendants, and other Sydney Beth Din, were unaware of any prior case where it had been held it might constitute a contempt to impose religious sanctions on an orthodox Jew if he did not attend a Beth Din after a Din Torah had been served on him.
Rabbi Gutnick noted the Defendants were aware that it is a contempt to issue religious sanctions for commencing or maintaining proceedings in a civil court, however, neither he nor the other Defendants believed that what they were doing in this case constituted such a contempt. Rabbi Gutnick therefore concluded the Defendants had no idea they were acting in contempt, and that they would never knowingly or intentionally do so. Rabbi Gutnick provided an English translation of the Talmud at Tab 3 Exhibit MG2 attached to his affidavit outlining how the Beth Din must respect the domestic law or 'law of the land'.
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).

Charge 6

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.

Publication of the decision

Rabbi Gutnick then outlined the publication of the decision of this Court, including dissemination to other Beth Din and publication in the Jewish community, including in the Jewish News of 22 December 2017 set out at Tab 5 of Exhibit MG2, titled 'Cloud over the Sydney Beth Din'. Rabbi Gutnick opined this has caused him personal distress and embarrassment, and that his Wikipedia page has been altered to refer to the finding of contempt (Tab 6 of the Exhibit MG2).

Family

Rabbi Gutnick is married with nine children aged between 18 and 35. Five of his children are married, with the remaining four studying and for the most part dependent on him. Rabbi Gutnick's wife is described by him as a homemaker.
In conclusion, Rabbi Gutnick stated neither he nor the Defendants would ever do something they have been ordered by the Supreme Court not to do, whether in this case or in any other case which is the same or similar.

Cross-examination

In cross-examination, it was put to Rabbi Gutnick to elaborate on what he meant in suggesting the Beth Din issuing sanctions as a remedy is no longer available. Rabbi Gutnick replied that as the law had found such sanctions as contempt, the remedy would no longer be available to the Beth Din (T3/31-45).
It was also put to Rabbi Gutnick that at the time of writing the email of 29 December 2016 and letter of 28 February 2017, the Defendants wanted more than simply Mr Barukh to attend a directions hearing with the Beth Din. It was put to him the Defendants actually wanted him to acquiesce to the whole process of adjudication followed by the Beth Din. When pressed, Rabbi Gutnick conceded that at the time of the two correspondences, the Defendants did want Mr Barukh to attend the whole process of a Beth Din, but not necessarily the Sydney Beth Din (T3/46-T5/11).
Rabbi Gutnick was also questioned with regard to whether the Sydney Beth Din would have acquiesced entirely if Mr Barukh had attended a directions hearing at the Beth Din and evinced an intention to go to a secular court. Rabbi Gutnick noted Mr Barukh, as a free person, could go to whichever court he chose, but this would nonetheless be regarded by the Beth Din as a breach of 'Halacha' (T5/12-T6/12).
Rabbi Gutnick was questioned on the inconsistency with the idea that the Beth Din would treat Mr Barukh as a 'free person', but who could nonetheless be subject to religious sanctions of the Beth Din. Rabbi Gutnick replied (T6/35-36): It depends if you call those sanctions a transgression of his [Mr Barukh's] freedoms as an Australian citizen, it's just the religious things, they are not…
Rabbi Gutnick was also cross-examined on his knowledge of the Hillfinch case, and whether prior to the sending of the email and letter the Defendants were aware that the imposition or threat of religious sanctions constituted contempt. Rabbi Gutnick conceded they did have knowledge that such imposition or threat could lead to the possibility of a contempt (T6/40-T7/41).
It was put to Rabbi Gutnick, at the time of the 28 February 2017 letter, he appreciated that by threatening the imposition of sanctions that he was in effect seeking to prevent Mr Barukh from maintaining these proceedings. Rabbi Gutnick denied this, stating that the sole intent of the letter was to bring the matter before the court. Rabbi Gutnick also noted with the greatest respect he accepted unreservedly my judgment (T8/31-T9/14).
With respect to Rabbi Gutnick's assertions as to the impecuniosity of Mr Kuzecki, making it unlikely he could have afforded to bring proceedings in the Supreme Court of New South Wales, Rabbi Gutnick stated the knowledge of Mr Kuzecki's means was somewhat indirect and relied on conversations not tendered in evidence (T9/16-T10/29).

Rabbi Ulman

Rabbi Ulman affirmed an affidavit dated 6 March 2018.
Rabbi Ulman outlined his biographical details, including his position as senior Dayan of the Sydney Beth Din. He qualified as a Rabbi in 1985, was ordained as a Rabbinical Judge in 1996 and again ordained with respect to specialised and complex areas of Jewish law in 1998.
Since 1986, Rabbi Ulman described how he has worked for the charitable organisation 'Friends of Refugees of Eastern Europe' (or 'FREE'). This work assists with the Russian speaking Jewish community in Sydney, providing spiritual and material welfare. He is also a senior Rabbi of the 'Chabad of Bondi'.
Rabbi Ulman was appointed to the Sydney Beth Din in 1994, and he described it as one of the most respected Beth Dins outside of Israel worldwide.
Rabbi Ulman described how the Sydney Beth Din is the religious authority on Jewish law in New South Wales on every aspect of Jewish law affecting the Orthodox community and on Jewish law.
Rabbi Ulman also works as a prison chaplain, trains Rabbis to become Rabbinical judges, works with Orthodox families seeking to obtain religiously suitable IVF treatment and has worked to develop a protocol for Orthodox Jews to become organ donors.
Rabbi Ulman also outlined his work assisting 'chained women', or women whose husbands have refused to give them a divorce under Jewish law, and generally in an issue of domestic violence considered by the communal Rabbinic leadership of Milan. Rabbi Ulman also noted his strong position in the Royal Commission concerning child sexual abuse.
Rabbi Ulman is married with seven children aged between 16 and 31. Four of his children are married and three remain dependent on his family. His fourth son and his wife live with Rabbi Ulman's family and do not pay rent. Rabbi Ulman's wife works in a part time job and the family receives a family tax benefit for their one remaining eligible child.
Rabbi Ulman noted that apart from the income he receives from 'FREE', he has no other regular income and is not paid for his work with the Sydney Beth Din.
Rabbi Ulman has read and agrees with Rabbi Gutnick's affidavit as to the place of the secular legal system alongside Jewish law. Rabbi Ulman echoed Rabbi Gutnick's sentiments regarding the upset and embarrassment he had suffered as a result of the contempt finding, including the report in the Jewish news that he suggested made the Defendants look like 'common criminals'.
Rabbi Ulman stated his utmost respect for the secular legal system, noting he would never do anything to intentionally be in contempt of this system. He stated had he thought that the actions of the Beth Din involved even a suspicion of improper pressure or contempt, he would never have countenanced them.
Rabbi Ulman was not required for cross-examination.

Rabbi Schlanger

Rabbi Schlanger affirmed an affidavit dated 7 March 2018.
Rabbi Schlanger referred to and relied upon his prior affidavit of 7 November 2017.
Rabbi Schlanger outlined his biographical details, including his studies as a Rabbi, his marriage in 2007 and his move to Australia with his wife in 2007.
Rabbi Schlanger outlined his work with the organisation 'FREE', with his main duties including community development and chaplaincy work in hospitals. He gives weekly classes on Jewish ethics and mysticism. He has founded an organisation within 'FREE' called the 'FREE soup kitchen' which facilitates visiting elderly members of the Russian speaking community and wider community. The focus of the organisation is to teach younger members of the community to give back to the wider community. This organisation also provides food to elderly residents in Waterloo and Redfern regardless of religious affiliation.
Rabbi Schlanger also outlined his work giving lectures on Orthodox Jewish religion and his role in coordinating Rabbi Ulman's schedule.
Rabbi Schlanger described his work as the Registrar of the Sydney Beth Din, a position he held since approximately October 2017. Prior to that role he was the secretary, having held that role since 2008.
Rabbi Schlanger asserted as Registrar he has no authority to issue rulings or to act in any way other than under the instruction of the three Dayanim. He asserted all correspondence sent by him on behalf of the Beth Din is dictated by one of the Dayanim and that he has no authority to amend what is written.
Rabbi Schlanger asserted when he sent the email of 29 September 2016, he did so under the instruction of Rabbi Gutnick and had no intention of improperly putting pressure on Mr Barukh or interfering with the administration of justice. He stated he had no idea this conduct could be considered contempt.
Rabbi Schlanger asserted he has the utmost respect for the 'law of the land' and Australian civil courts.
Rabbi Schlanger is married with three children aged 9, 6 and 2. His wife works voluntarily for 'FREE' but is otherwise not employed in a paid capacity. Rabbi Schlanger supports his elderly parents with a monthly payment, together with his other siblings who also contribute financially to their parents. His family receives a family tax benefit although Rabbi Schlanger understood this is paid to his wife.

Rabbi Chriqui

Rabbi Chriqui affirmed an affidavit dated 2 March 2018. I will outline his evidence in that affidavit.
In this affidavit, Rabbi Chriqui outlined his position as junior Dayan of the Sydney Beth Din. He outlined some biographical details, including being ordained as a Rabbi in 1992, study in Rabbinical colleges and work in the former Soviet Union assisting Jewish brethren to be reacquainted with their faith.
Since 1993, Rabbi Chriqui has been chief minister of the Sephardi Synagogue in Sydney. With the salary from this synagogue he supports a family of 7 children who are aged between 8 and 23.
Rabbi Chriqui outlined his work in the Sephardi Synagogue and charitable work, including with the organisation 'Chaverim le Refuah' which distributes medication free of charge to the poor in Israel. Rabbi Chriqui also described his work to provide relationship counselling, pastoral care and his work on the board of Yeshiva Cheder School as one of its founding members.
Rabbi Chriqui outlined how three years ago he was invited to join the Sydney Beth Din as a junior Dayan, particularly to represent the Sephardi Jews of Sydney. Rabbi Chriqui stated this position is honorary and unpaid.
Rabbi Chriqui outlined how Mr Barukh's case was the first commercial dispute between two private individuals where one party refused to attend in response to their summons. He stated that he left the case entirely under the responsibility of Rabbi Gutnick and he believed the procedures followed complied with normative standards whilst not contravening secular law.
Rabbi Chriqui observed he never believed anything the Defendants did was calculated to exert improper pressure to prevent Mr Barukh from access to a civil court and that he never had any intention of doing so. His focus was reportedly entirely on Mr Barukh's religious obligations to answer the summons of the Beth Din and his other religious duties. Once proceedings began, his focus became to have proceedings brought on for hearing as soon as possible to clarify the jurisdiction of the Sydney Beth Din.
Rabbi Chriqui stated that had he thought for one instance that the actions of the Sydney Beth Din involved even a suspicion of improper pressure on Mr Barukh or contempt of court, he would not ever have countenanced them.

Apology

I should observe again, as a result of an exchange between myself and the counsel for the Defendants on Monday 19 March 2018, an apology was proffered by the Defendants to the Court for any insult to the Court or to the administration of justice. They indicated they would swear to that effect.

Penalty

As I have made plain I saw this case as one arising in the context of interference with the administration of justice generally or as a continuing process, rather than one of interference with the administration of justice in a particular case, as discussed in the authorities (see original judgment [98]-[105] and as I observed at [246]).
I also observed the Charges needed to be seen in a particular context which obviously included this litigation (see [235]-[244]).
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 (see [251]-[254]). This is especially so when viewed in the context of Mr Barukh's relevant vulnerabilities (see [255]-[259]).
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 (see [264]-[272] and [282]-[286]).
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.
Charge 2 had as its principal focus the 29 December 2016 email extracted at [53] and Charge 6 focussed upon amongst other things the letter of 28 February 2017 extracted at [66].
The former related to conduct prior to the commencement of litigation, the latter some weeks after it had commenced.
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 (see [255]-[259]).
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.
In the circumstances, it seems to me that the situation is one in which the administration of justice is entitled to have its integrity preserved.
I am satisfied at all relevant times the Defendants intended to pressure and coerce Mr Barukh to force him to attend upon them alone. In my view that is or is tantamount to them intending to interfere with the administration of justice.
The underlying rationale of sentencing for contempt is to ensure the protection and the effective administration of justice.
I agree with the Defendants that the usual principles on sentencing apply. In other words the process involves an instinctive synthesis of multiple factors. The effect of the contempt on the administration of justice is obviously a relevant matter.
I also accept that punishment does not necessarily follow from the establishment that a contempt has been committed. The circumstances must require the exercise of the court's jurisdiction to punish.
As is clear from the authorities referred to above, there are a number of factors which traditionally courts have taken into account in determining the appropriate penalty for such a contempt. A number of those factors can be put to one side immediately.
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. This is put on the basis that there is no evidence that the Plaintiffs ever contemplated at any relevant time bringing other proceedings and that there can be no suggestion that they were potentially discouraged by doing so. It is further submitted that the evidence is that none of the Defendants ever contemplated the Plaintiffs might bring such proceedings. Whilst there is some force in this submission, it fails to address the reality. The threats commenced, as I have said, the moment the Plaintiffs asserted the appropriateness of a secular court and continued despite the fact proceedings were commenced, although deferred pending the outcome.
The reasons I regard the threats to be serious are as follows.
First, the threats before and continued after litigation was commenced were unacceptable for the reasons already discussed.
Second, the Defendants in their submissions pay no regard whatever to the effect on the Plaintiffs by reason of the threats posed. I accepted in my reasons they had a real effect on Mr Barukh and indeed his family. He should not have been threatened in the way that he was, and his evidence of the impact was not challenged. That is an important fact because in my view it is direct evidence of the interference having effect on the administration of justice in a relevant sense.
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.
Presumably what Rabbi Gutnick was suggesting was if Mr Barukh had indicated he wanted to commence litigation himself, which Rabbi Gutnick well knew at all times was not what Mr Barukh was suggesting, he and others would have reacted benignly. Again if that is what was intended I do not accept it. It is simply contrary to what the Defendants said and did.
Clearly Mr Barukh was asserting that the dispute should be heard by a secular court. Further, Mr Barukh asserted in his evidence, that he had terminated the agreement by paying a sum of $10,000.00 and giving the requisite notice of termination (see affidavit of Reuven Barukh of 9 February 2017 at [27]-[28]). This evidence of Mr Barukh was not challenged. Further it was always open to the Beth Din clearly and fairly to indicate, if it was their genuine view that if he were to commence litigation, that would be the end of it, but they never did. As I have said, it is quite at odds with the terms and tone of the relevant communications. Even when the litigation was commenced the Defendants indicated they would merely defer the sanctions not abandon them.
The bullying manner adopted by the Defendants together with their zeal to enforce or exert their exclusive authority is and should be regarded as a serious matter especially when as I have found it had the tendency to interfere with the administration of justice. Indeed it seems that was the clear effect of their conduct which in turn had the unchallenged impact on Mr Barukh and his family which I am satisfied was real not just theoretical.
A further question is to what extent each of the Defendants should bear the same or separate responsibility. In the original proceedings before me each Defendant accepted that he acted for and on behalf of the Beth Din. In the proceedings before me on penalty an attempt has been made to distinguish the role of Rabbi Schlanger as opposed to the roles of the others. I am not satisfied that there should be any distinction between the roles of the respective persons.
Each person is a Rabbi and of some status in the Jewish community. It is true within the Defendants there is a level of seniority and Rabbi Schlanger may well be the most junior. That said, he was the signatory to much of the relevant correspondence. Whether or not he acted purely at the direction of Rabbi Gutnick and applied no independent mind to what he was doing, it is clear to me he is an intelligent person steeped in the learning of the Jewish faith. It could not have escaped his attention of the effect of the process he was actively participating in, alongside his colleagues. He must have fully appreciated the tone and terms of the communications he was prepared to sign. To that extent I do not regard Rabbi Schlanger as bearing any less responsibility by reason of him being what is said to be an amanuensis.
On the other hand 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. I will come back to this issue shortly.
Next it is submitted on behalf of the Defendants that they did not understand that they were acting in contempt or contrary to the law and would not knowingly have so acted. In addition they have asserted that they would never have threatened or imposed sanctions for commencing or continuing court proceedings. I am also prepared to accept that the Defendants' principal focus was upon forcing their religious authority on Mr Barukh. That to one side, their ignorance of the law together with the arrogant and the superior tone adopted in their communications and conduct generally towards Mr Barukh is not an excuse and was in my view unacceptable. 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.
The mere fact that a forensic landscape as understood by the Defendants may have lacked a precedent does not excuse their threats in my view. It is true that their conduct initially was private in the sense that, beyond the publicity to which I shall return in a moment, the threats were never widely published by the Defendants. However they did threaten that in the event sanctions were imposed they would notify the relevant sections of the community with whom Mr Barukh associated himself, as is clear in the email of 29 December 2016 (Court Book for original proceedings page 55). They had every intention of causing reputational damage to Mr Barukh and disseminating widely his admonishment in the relevant community by the imposition of the sanctions.
Whilst the Defendants' conduct could not in my view be described as contumacious, I regard it as serious enough to warrant a tangible penalty.
I accept 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.
It is submitted that the Rabbis have suffered significant embarrassment and distress as the result of being found guilty of contempt of court. Some publicity has been referred to, in particular some newspaper articles. I accept that to a person valuing a good reputation the mere fact of conviction may be seen as a punishment. Any humiliation which has arisen as a result of publicity whilst embarrassing and distressful can be seen equally to be the product entirely of their own behaviour. It has not been suggested they have been the subject of unfair reporting. In these circumstances given the amount and type of publicity that has occurred, in my view it should not have any material effect in mitigation of sentence.
Whilst I accept unequivocally that given the circumstances there may be little if any risk that the Defendants would repeat the same conduct I do not think that in itself in this case is sufficient to avoid the need of at least general deterrence. I accept Rabbi Gutnick has taken efforts to ensure that the Australian, New Zealand and United Kingdom Batei Din are aware of the decision. However, in my view, because of the importance of the administration of justice and the need to be vigilant to ensure its integrity is maintained there is a need for general deterrence in this case.
I observe the Defendants very belatedly and only after exchanges between myself and their counsel, proffered apologies to the Court. Counsel indicated each Defendant proffered an apology and were willing to swear to that offer (T20/3-11). Whilst an apology is clearly a relevant factor, the belated extraction detracts from what might otherwise be a matter of material significance. I have taken it into account but given it little weight.
On the other hand the two Charges I have found, given the fact that they are part of the same course of conduct, should not in my view be the subject of separate penalties. In the circumstances I regard a fine is the appropriate penalty together with appropriate declarations. 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. The fixing of the penalties at these levels is to be seen in the light of the costs orders I propose below.

Costs

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.

Amendments 03 April 2018 - Paragraph [14], quoting Lord Scarman, change judgment to justice. Paragraphs [16] and [27], change Dean to Deane. Paragraph [24], change "penalty of contempt" to "penalty for contempt". Paragraphs [29],[47] and [52], after Ward CJ add "in Eq". Paragraph [48], after "Costs" add "orders". Paragraph [50], change "required to justice" to "required to do justice". 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: 03 April 2018

Crimes (Sentencing and Procedure) Act 1999(NSW)

Uniform Civil Procedure Act 2002(NSW)

His Honour was recorded in this judgment). Crimes (Sentencing Procedure) Act 1999(NSW)

Under the Crimes (Sentencing Procedure) Act 1999(NSW)

R v Ruttley (No 7) [2017] NSWC 1582 R v Thompson; R v Houlton (2000) 49 NSWLR 383 Re Coroner's Court of Western Australia; Ex Parte Porteous [2002] WASCA 144 Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 Riggio v R [2015] NSWCCA 223 Roff v R [2017] NSWCCA 208 Scholefield Goodman (Australia) Pty Limited v Rutkowski [2018] NSWSC 19 Siganto v The Queen (1998) 194 CLR 656 The Prothonotary v Collins (1985) 2 NSWLR 549 Veen v R (No 2) (1988) 164 CLR 465 Witham v Holloway (1995) 183 CLR 525 Wood v Galea (1996) 84 A Crim R 274 Texts Cited: C J Miller, Contempt of Court (Oxford University Press, 3rd ed, 2000) Ian Cram et al (eds), Borrie & Lowe: The Law of Contempt (LexisNexis, 4th ed, 2010) Category: Procedural and other rulings Parties: Live Group Pty Ltd ACN 145320403 (First Plaintiff) Reuven Barukh (Second Plaintiff)

Proceedings

These proceedings arise from the judgment I delivered on 14 December 2017 concerning Live Group Pty Ltd and Anor v Rabbi Ulman and Ors [2017] NSWSC 1759 (the original judgment). The conclusion can be found at paragraphs [298]-[300].
This case arose from the refusal to answer the summons of a Rabbinical Court known as the Sydney Beth Din.
The Defendants threatened to impose religious sanctions on Mr Barukh (Second Plaintiff) for failure to attend the Beth Din in respect of a commercial dispute between the First Plaintiff, Live Group Pty Limited (Live Group) and SalesPort LLC (SalesPort). The Defendants are Rabbi Yehoram Ulman (First Defendant), Rabbi Moshe Gutnick (Second Defendant), Rabbi Michael Chriqui (Third Defendant) and Rabbi Eli Schlanger (Fourth Defendant).
The Plaintiffs primarily sought declaratory and injunctive relief restraining the Beth Din from hearing the commercial dispute and from continuing to threaten the imposition of religious sanctions. The Plaintiffs also submitted in a Statement of Charge filed 11 August 2017 ten Charges supporting a claim of contempt against the Defendants.
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 [264]-[272] of the original judgment. In relation to Charge 6, my findings are at paragraphs [282]-[286].
This judgment concerns the appropriate relief that should be granted in accordance with my decision, specifically in relation to the questions of penalty and costs.

At a glance

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Judgment (24 paragraphs)

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Legislation Cited (8)

Cases Cited (45)

Cited By (3)