Ulman v Live Group Pty Ltd

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

1. The basis of the Beth Din's authority, as the appellants contended, was explained by Rabbi Gutnick as follows: "It is a fundamental tenet of Judaism that all Jews must seek resolution of their conflicts within the Halachic system rather than in the secular courts ... regardless of any arbitration agreement that may ... have been signed by the parties."
2. Rabbi Gutnick explained that this obligation was "binding on every member of the Jewish faith" and that "[n]o person who professes to be of the Jewish faith can fail to comply [with] this obligation and still be true to that faith". He stated that there were "significant religious sanctions" associated with a refusal to comply with this obligation and that the Sydney Beth Din, as a formal Beth Din, had "the power under Halacha to apply religious sanctions". Further, he explained that a dispute "is usually brought before a Beth Din by the Beth Din issuing a summons to the parties who are to be involved in the hearing of the dispute".
3. Rabbi Gutnick tendered an English restatement of the prohibition against settling disputes in "gentile courts", as contained in s 4, ch 26 of the Code of Jewish Law. The introduction provides as follows: "A beth din system assumes that all disputes will be adjudicated in the beth din. Even where there is no organized beth din system, the prohibition against adjudicating disputes in the non-Jewish courts applies. Rambam stated the law as follows: Whoever submits his dispute to Gentiles and to their courts, even if their laws are similar to the laws of Israel, such a person is considered a wicked person. It is as if he had reviled and blasphemed and rebelled against the law of our teacher Moses." The restatement continues as follows: "It is prohibited to invoke the jurisdiction of the Gentile courts to settle a dispute The word prohibited is intentionally employed here, since this is a jurisdictional defect per se. Employing Gentile courts rejects the entire Torah beth din system, organized or not … The prohibition applies even if both parties agree to use the Gentile courts, and even if they agreed by kinyan. The prohibition applies even if they swore to go to the Gentile courts. The prohibition applies even if it was included in an agreement between the parties, effected by kinyan, regarding other matters, such as going into a partnership together."(footnotes omitted)
4. In relation to the Din Torah process, the appellants explained that the reference in the Beth Din summons to Mr Barukh's entitlement to apply for summary dismissal referred to his entitlement under the procedures of the Beth Din to make an application at the directions hearing for the claim before the Beth Din to be summarily dismissed. Rabbi Gutnick gave evidence that in addition to Mr Barukh's entitlement to make such an application, which would have afforded him an opportunity to be heard as to whether there was merit to Mr Kuzecki's claim, Mr Barukh could have sought an order that the dispute be decided by a different Beth Din at the directions hearing.
5. The respondents challenged this, stating that the purpose of the directions hearing was to make arrangements for the hearing of the matter, including the signing of an arbitration agreement.
6. Mr Barukh also had a different view to that espoused by the appellants as to the authority of the Beth Din. He explained that there was no management or board to whom the Rabbis were required to report and that they were not elected by the community. He stated that Rabbi Ulman, Rabbi Gutnick and Rabbi Chriqui belonged to a particular Jewish sect, the Chabad Lubavitch, and that they controlled the Sydney Beth Din, which seeks to impose its views on the entire Sydney Jewish community.
7. Mr Barukh did not accept that the Sydney Beth Din had international recognition in relation to civil or financial disputes or that their decisions would necessarily be accepted in another Beth Din or in a court of Israel. Mr Barukh denied Rabbi Gutnick's suggestion that Rabbis of different sects throughout the world would sit together on the same Beth Din. Mr Barukh stated that many Jewish Orthodox sects isolate themselves from each other and would not sit with Rabbis of a different sect on a Beth Din.
8. Mr Barukh did not agree that the authority of the Beth Din extended to any dispute that might have arisen out of the contract between Live Group and SalesPort. He accepted that there were issues over which the Beth Din had jurisdiction, but stated that these were personal matters such as divorce, child abuse and women's rights in marriage. He stated that the Beth Din did not have jurisdiction over a dispute between corporations. As he stated in his affidavit evidence: "Australian Corporations Law governs the conduct and legal obligations of Live Group. Live Group cannot be held responsible or liable for any deemed halachic obligation as the Beth Din and [the appellants] are seeking to do, by summonsing myself and my mother, the only Directors of Live Group, as well as my sister who lives in Switzerland and has never had any involvement in Live Group or its associated entities."
9. According to Mr Barukh, Live Group's business matters could not be considered to be part of the core Jewish religious beliefs and were beyond the reach of the Beth Din. Mr Barukh further pointed out that the dispute was between two registered companies and that directors are not ordinarily personally liable for the debts and obligations of the company.
10. Mr Barukh also contested the appellants' assertion that all observant Jews were required to have their disputes determined by the Beth Din. By way of example, he referred to a dispute between Rabbi Gutnick's brother and sister in respect of which Rabbi Gutnick's brother had resisted the dispute being determined by a rabbinical court in Israel, invoking "the famous Jewish teaching 'dina demalchuta dina', which means 'the law of the land is the law'".
11. Mr Barukh was not cross-examined and his evidence was therefore unchallenged. Rabbi Gutnick was cross-examined and the primary judge did not accept certain aspects of his evidence as identified later in these reasons.

Impact of sanctions on Mr Barukh

1. Mr Barukh gave evidence of the impact that the sanctions would have on him if they were imposed. He stated that they would have severe consequences on him not only personally, but also in his capacity as director and CEO of Live Group and the other associated entities of which he was director and CEO. This in turn would impact upon persons employed by those entities and customers throughout Australia. Mr Barukh also stated that he was extremely concerned that any such sanctions would impact upon his good name and reputation, which he has built up over many years in the business world.
2. The two matters that concerned him most at a personal level were that, if the sanctions were imposed: he would be stripped of his birthright as a born Jew to be counted as part of a minyan; and he would not be permitted to say a Jewish prayer at the Torah on the anniversary of his father's death each year. Mr Barukh explained that a minyan was a quorum of 10 Jewish men above the age of 13 entitled to be counted for the purposes of partaking in any form of Jewish prayer.

The Supreme Court proceedings

1. The respondents' summons filed in the Supreme Court on 9 February 2017 was brought against the four appellants, SalesPort and Mr Kuzecki. The summons was amended on 12 April 2017, in which the respondents no longer pursued relief against Mr Kuzecki or SalesPort. It was further amended on 14 July 2017.
2. Relevantly, the respondents in their further amended summons: 1. Challenged the jurisdiction of the appellants to arbitrate or otherwise adjudicate upon the alleged commercial dispute referred to in the Beth Din summons. 2. Challenged the conduct of any such proceedings on the basis of impartiality, lack of independence and/or apprehended bias on the part of Rabbi Ulman, Rabbi Gutnick and/or Rabbi Chriqui. 3. Challenged the jurisdiction of the appellants to arbitrate in respect of the agreement entered into between Live Group and SalesPort. 4. Sought injunctive relief to restrain the appellants from taking any step to adjudicate upon or arbitrate in respect of the alleged commercial dispute or the agreement between Live Group and SalesPort. 5. Sought injunctive relief to restrain the appellants from taking any step that would involve the imposition of any of the religious sanctions referred to in the email of 29 December 2016. 6. Sought declarations: 1. that the agreement between Live Group and SalesPort was not an arbitration agreement with the meaning of the Commercial Arbitration Act 2010 (NSW) or the International Arbitration Act 1974 (Cth); and 2. that the appellants in their capacity as representatives of the Sydney Beth Din had no jurisdiction to conduct any arbitration proceedings under either the Commercial Arbitration Act or the International Arbitration Act and that any award issued by the Sydney Beth Din in respect of the alleged commercial dispute under either Act was of no force or effect. 1. Sought a declaration that the pressure the appellants had placed on Mr Barukh to comply with their demands to respond to the Beth Din summons constituted and continued to constitute a contempt of court.
3. On 11 August 2017, the respondents filed the statement of charge in relation to the contempt allegations. The primary judge upheld charge 2 and charge 6, which were in the following terms: "You are charged … with contempt of Court in that: … 2 On 29 December 2016, you, in your capacities as representatives of the Sydney Beth Din, after having received further notification from [the respondents] that they considered the dispute the subject of the Sydney Beth Summons to be a civil matter that ought to be determined in a constitutionally established court of civil jurisdiction in Australia and that the said dispute ought not be adjudicated upon by the Sydney Beth Din, made the following threat to [Mr Barukh]: 'The Beth Din is a court of law whose jurisdiction applies on all members of the Jewish Faith and in particular those who consider themselves observant as does your client [Mr Barukh] ... Unless by 5pm January 26 2017 the Beth Din hears from you on behalf of your client [Mr Barukh] that he has recanted and that he acquiesces to the Beth Din process in accordance with Jewish Law, (which is indeed compatible with secular law), the following halachic sanctions will apply and the Synagogue's where he prays will be informed accordingly. 1. He will not be counted to a minyan. 2. He will not be able to receive an aliyah to the Torah. 3. He will not be offered any honour in the Synagogue. There are further sanctions that will be applied should your client maintain his recalcitrance ... We advise and urge your client [Mr Barukh] not to underestimate the resolve of the Beth Din in ensuring Jewish law is adhered to especially with those who profess to adhere to the tenets of Orthodoxy.' Particulars Letter dated 22 December 2016 from Lazarus Legal [the respondents' solicitors] to the Sydney Beth Din, sent by email on 22 December 2016 at 3:38 pm; Email dated 29 December 2016 sent at 3:49 am from Rabbi Schlanger as Secretary and on behalf of the Sydney Beth Din to Lazarus Legal Group. … 6 On 28 February 2017, after [the respondents] had commenced and served proceedings against you in the Supreme Court of New South Wales seeking, inter alia, declaratory and consequential relief challenging the Sydney Beth Din Summons and the jurisdiction of the Sydney Beth Din to conduct the proposed arbitral proceedings, you, in your capacities as representatives of the Sydney Beth Din, made the following threat to [Mr Barukh]: '[U]nless [Mr Barukh] complies with the orders of the Beth Din and submits to its jurisdiction as his religious obligations require, the Beth Din intends to impose on him the religious sanctions set out in the email from the secretary of the Beth Din to Lazarus Legal Group dated 29 December 2016 ... In accordance with the undertaking given to the Court on 15 February 2017, this step will be taken on the 22nd day after the date of this letter.' Particulars Letter dated 28 February 2017 from Schweizer Kobras [solicitors for the appellants] to Lazarus Legal Group [solicitors for the respondents]."

Primary judge's findings on contempt

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

General matters

1. In considering the nature of the criminal contempt that had been charged, the primary judge noted, at [245], that it was important that Mr Barukh had not commenced nor threatened to commence proceedings in a civil court in respect of the alleged commercial dispute arising out of the agreement between Live Group and SalesPort. His Honour stated that the "only relevant proceedings are the proceedings before this Court, concerned with apprehension of bias and contempt of Court".
2. His Honour continued, at [246]: "It is therefore not a question of whether the threat of sanctions has a real and definite tendency to interfere with the administration of justice in a particular case. Rather, the issue falls into the earlier referred to 'broader' category of contempt ([Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046] at [130] per Ward CJ in Eq), namely whether the threat of sanctions had and/or has, as a matter of practical reality, a real and definite tendency to interfere with the administration of justice generally."
3. His Honour then considered, at [251]-[254], the "pervasive error" that the appellants alleged infected the respondents' contempt of court claim, namely, that the respondents conflated "the threat of sanctions not to attend the Beth Din with the threat of sanctions for bringing proceedings in a secular court". His Honour explained the appellants' argument as follows: "[The appellants] wholly accept they have threatened and continue to threaten sanctions on Mr Barukh for refusing to attend upon the Beth Din, and that the threats were intended to put pressure on Mr Barukh to acquiesce to the Beth Din process … However, counsel for [the appellants] has repeatedly maintained these threats are unrelated to Mr Barukh's decision to commence proceedings in a secular court, and only have to do with his refusal to attend the Beth Din …"
4. His Honour then summarised the evidence as follows: "[252] … On the evidence, it is plain a necessary implication of Mr Barukh acquiescing to the Beth Din is Mr Barukh having to abandon his claim in the secular courts. Rabbi Gutnick agreed the effect of submitting to the Beth Din's jurisdiction 'would effectively require Mr Barukh to give up on his case in the Supreme Court' … and Rabbi Ulman agreed submitting to the jurisdiction of the Beth Din was 'at odds' with what Mr Barukh was seeking in these proceedings … [253] Further, Rabbi Gutnick accepted where both parties are Jews, and a Beth Din summons has been issued, neither can resort to a civil court without the permission of the Beth Din ... Rabbi Gutnick went on to say a contravention of this Halachic law would not result in religious sanctions, but accepted the sanction would instead flow from the refusal to attend the Beth Din …"
5. His Honour continued: "In my view, while the sanctions may, from a strictly technical perspective, be tied to a refusal to attend the Beth Din, the practical reality is the sanctions inevitably result from attending a secular court without the permission of the Beth Din."
6. His Honour concluded, at [254]: "On these grounds, the distinction between sanctioning Mr Barukh for failing to attend upon the Beth Din versus not sanctioning Mr Barukh for commencing proceedings in a civil court is a distinction without a difference. As a matter of practical reality, the effect of acknowledging and abiding by the Beth Din Summons is that Mr Barukh would not be able to contemplate or resort to a civil court for the purposes of the dispute. In this sense, the threat of sanctions for failing to attend upon the Beth Din entails, in substance, the threat of sanctions for instead resorting to a civil court."
7. His Honour also made a number of findings about the impact of the threats upon Mr Barukh and what the appellants would have known would be the effect of those threats. His Honour found, at [256], that Mr Barukh and his family were well known to Rabbi Ulman, Rabbi Gutnick and Rabbi Chriqui and that the Rabbis would have appreciated that the sanctions threatened in their communications would have had expected and/or inevitable consequences for Mr Barukh and his family.
8. His Honour also found, at [267], that the threats were inherently calculated to exert pressure on Mr Barukh and that they had had a serious impact on him, including his emotional and mental welfare. His Honour found that the appellants appreciated that Mr Barukh was vulnerable to threats of "serious" or "significant" sanctions which would effectively strip him of his identity as a Jew, especially as he was no longer permitted to be counted in a minyan.

Findings in respect of charge 2

1. His Honour, at [265], was satisfied beyond reasonable doubt that the email of 29 December 2016 was conduct that placed: "… improper pressure on Mr Barukh to not exercise his right to access a secular court, and therefore has a real and definite tendency to interfere with the administration of justice."
2. Relevantly, his Honour made the following findings: "[266] First, as I have found, the threat of sanctions for failing to attend upon the Beth Din should not, and cannot, be regarded as distinct to any threat of sanctions for resorting to civil courts without permission of the Beth Din. This is particularly clear in the context of the 29 December email, where the threat of sanctions in my view were provoked by Mr Barukh's suggestion two days earlier that the Kuzecki commercial dispute should appropriately be determined in a civil court ... … [270] Quite simply, to threaten reprisal of the kind articulated in the 29 December email merely because of a firmly held view a civil court is the appropriate forum for the determination of a commercial dispute, is to not only threaten the integrity of the Court but its authority as the ultimate decision maker. There is no contest between the Beth Din and relevant curial process in the State of New South Wales. The Beth Din is not entitled to insist - under threat of religious sanction - it is the only method by which an observant Jew is entitled to have his or her dispute determined. It is not to the point to simply categorise, in an attempt to trivialise, the Beth Din as purely religious. The Beth Din intends itself to be an exclusive jurisdiction over observant Jews, otherwise penalties ensue. [271] In my view, the Beth Din's enforcement of this position in the 29 December email can only be seen as improper pressure calculated to intimidate and coerce Mr Barukh to comply with the Beth Din's directions by attending to, and only to, the Beth Din. This finding is not a restriction on their religious freedom, it is a restriction in our democracy of any person holding and acting upon the view a civil court is not the appropriate place for the determination of commercial disputes between Jews, or for that matter gentiles."

Findings in respect of charge 6

1. His Honour observed, at [283], that the letter of 28 February 2017 reasserted the authority of the Beth Din and again made it abundantly clear that unless Mr Barukh complied with the Beth Din summons, religious sanctions would follow, as had been stated in the email of 29 December 2016. His Honour then stated, at [284]: "However, in my view the maintenance of the sanctions are not asserted in relation to Mr Barukh's approach to the Court on 9 February, but should and can only be seen as a continued assertion sanctions will be imposed for his failure to attend upon the Beth Din and recognise its jurisdiction in respect of the Kuzecki commercial dispute. It is that continued assertion which, in my view, clearly amounts to a threat, and as a matter of practical reality has a real and definite tendency to interfere with the course of justice."
2. Notwithstanding the contents of the letter of 28 February 2017, which his Honour, at [285], considered could not be construed "as maintaining the threat by reason of Mr Barukh having commenced [the Supreme Court proceedings]", his Honour nonetheless considered that it was the appellants' "clear intention" to proceed against Mr Barukh by imposing sanctions for his failure to attend upon the Beth Din.
3. His Honour concluded, at [286], that the maintenance of that conduct had "the tendency to interfere with the administration of justice". According to his Honour: "The threats continue to maintain the assertion [Mr Barukh] was obliged as an observant Jew to abide the orders of the Beth Din and submit to its jurisdiction. Failure to do so has provoked threat of the imposition of the religious sanctions which remain on foot. Therefore this publication, in my view, equally, as a matter of practical reality, has the requisite tendency to interfere with the administration of justice generally and therefore I am of the view that Charge 6 has been made out."

Legal principles applicable to criminal contempt

1. The primary judge dealt with the principles of criminal contempt at [88]ff. The parties accepted that his Honour correctly stated the relevant principles. As his Honour observed, at [88], the law of contempt is "grounded in the judicially recognised right of unimpeded access to the courts": see Attorney-General v Times Newspapers Ltd [1974] AC 273 at 307-309; Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242 at 249-250.
2. The authorities recognise a distinction between criminal and civil contempt. As the High Court explained in Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 at 530: "In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice."
3. It is also accepted authority that there will be an interference with the course of justice where improper pressure is placed upon a litigant. In this regard, the distinction between proper and improper pressure is important. In Harkianakis v Skalkos (1997) 42 NSWLR 22, Mason P summarised, at 27-30, the general principles to be applied where improper pressure is exerted on a litigant. His Honour considered, at 30, the distinction between proper and improper pressure: "In punishing certain types of interference with litigants, the law is concerned to distinguish between proper and improper pressure: see Meissner v The Queen (1995) 184 CLR 132 … This is because the litigant's freedom to conduct litigation as he or she chooses is not an absolute one. The distinction between proper and improper pressure is also encountered in restitution and contract law with their categories of economic duress … The fixing of an early hearing date by a judicial officer puts pressure on a litigant, but no one would categorise such pressure as improper. Likewise with the disinterested persuasion to settle by a member of the litigant's family. But not all pressure is as disinterested, or can claim such obvious justification in the public interest. Pressure may be actual or threatened, conditional or unconditional. What is done (or threatened) may be lawful or unlawful conduct. The mere fact that something that is lawful is threatened does not mean that the pressure is necessarily proper. Were it otherwise, a threat to report a legal practitioner to a professional disciplinary body … or to commence a prosecution … could not constitute a contempt. Yet it clearly may."
4. In Bhagat v Global Custodians Ltd [2002] NSWCA 160, Spigelman CJ observed: "[38] Whether or not the pressure sought to be applied in a particular case can be described as 'improper', depends on all of the circumstances of the case. The various statements in the letters in these proceedings must be read in the whole context. [39] … A firm assertion that the other party must lose and a reasonable statement of the consequences of loss is not a contempt, even if it does exert pressure on a party to withdraw proceedings. The position is otherwise if a demand of that character is accompanied by improper threats or assertions …"
5. Spigelman CJ drew a distinction, at [49], between the operation of the law of contempt with respect to public communications and private communications. In relation to the former, the law was required to balance "the public interest in freedom of speech against the public interest in the administration of justice". In such cases, his Honour considered that the element of interference with the administration of justice was mediated by the response of the community, not just the parties. However, in the case of a private communication between parties to legal proceedings, his Honour stated that the vulnerability of a party, in terms of, for example, age and means, could be material in determining whether pressure was improper. In this regard, his Honour did not consider it necessary to choose between an objective and a subjective test.
6. In the same case, Ipp AJA referred, at [53], to what he had said in Resolute Ltd v Warnes [2000] WASCA 359 at [19], in the context of a public publication: "In the circumstances, a primary question is whether the published material has, as a matter of practical reality, a real (or clear) and definite tendency to interfere with the course of justice. This question depends on an objective assessment of the relevant material. The Court must 'ascertain whether the publication is such as may affect the minds of reasonable men': Fry v Bray [1959] 1 FLR 366 at 376."
7. In the context of a private communication, his Honour added, at [54], his agreement with Spigelman CJ, stating that: "… at least in cases of contempt of Court involving private communications to individuals, regard should be had to the subjective characteristics of the recipients of the communications. That is to say, there should be an objective assessment of the relevant materials, having regard to the subjective characteristics of the recipients of the communications."
8. There is another distinction to be drawn, which was of particular relevance to the appellants' argument, namely, the distinction between a contempt arising from conduct that interferes with the administration of justice in a particular case and interference with the administration of justice generally. In the former case, no contempt will have been committed unless proceedings are pending: see James v Robinson (1963) 109 CLR 593; [1963] HCA 32 at 602-607. In The Prothonotary v Collins (1985) 2 NSWLR 549, McHugh JA observed, at 567: "Time and again the courts have said that there can be no contempt unless proceedings are pending: see James v Robinson (1963) 109 CLR 593 at 602-607. Cases of interference with the administration of justice as a continuing process are no doubt an exception to this rule. Their rationale is different from publications which interfere with particular proceedings. They rest on the need to protect the courts and the whole administration of justice from conduct which seeks to undermine the authority of the courts and their capacity to function." See also Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 per Ward CJ in Eq at [130]ff.
9. The primary judge also considered a number of analogous cases that have dealt with instances of improper pressure on a litigant, that being the allegation in this case. No issue was taken with his Honour's review of these authorities.
10. His Honour first considered what he described as the most relevant authority, Hillfinch Properties Ltd v Newark Investments Ltd [1981] The Times 9 (1 July 1981). In that case, the parties were companies owned and controlled by persons of the Jewish faith. The defendant issued a petition to wind up the plaintiff, whose directors had refused to repay an alleged, disputed loan. The plaintiff brought an action to restrain the winding up. The defendant sought an order that the plaintiff's action be dismissed for contempt of court because they had approached a rabbinical court and secured that the Rabbis issue to the defendant threats of excommunication unless they withdrew their winding up petition. The question was whether those threats constituted a contempt of court.
11. It was reported that Slade J: "… was content to assume that it was a contempt of court for a rabbinical court to threaten practising, orthodox Jews with excommunication merely for the alleged sin of prosecuting litigation".
12. However, Slade J considered it unnecessary and preferable not to express any final conclusion on the question without the presence of the Rabbis or the Attorney-General as a guardian of the public interest.
13. The primary judge also considered the more recent decision of Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775. In that case, the defendant sought interim orders preventing the continuance of what it alleged were "serious continuing contempts of court" until the final hearing of its notice of motion, in which it sought declarations that certain parties, including the plaintiffs, were in contempt of court. The defendant alleged that the plaintiffs had caused the controller of the defendant to be excommunicated from the Jewish faith, as punishment for the defendant pursuing its remedies before the Supreme Court of New South Wales.
14. Young CJ in Eq articulated the question in issue as being "how far, if at all, it is a contempt to put pressure on a party or witness to litigation by threatening a religious sanction if that person continues with the litigation". His Honour observed, at [35], that "[i]t is clear on the authorities that litigants are not protected against all pressures, public or private, when they mount the stage of litigation". Nonetheless, his Honour stated, at [31], that: "… the proposition that putting pressure on a litigant by having a religious excommunication hanging over his head as the price he may pay if he pursues the litigation may well be a contempt of court."
15. Young CJ in Eq noted, at [32], that: "In the instant case, it must be remembered that the pressure about excommunication commenced before the proceedings started and then were reactivated, possibly by way of revenge, after the case proper was finished."
16. In the result, his Honour considered it unnecessary to make any orders, the application before him being interlocutory.

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

Parties' submissions

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

Charge 2: email of 29 December 2016

1. The appellants submitted that no contempt was alleged in charge 2. Rather, they contended that the alleged contempt arising out of the conduct referred to in charge 2, being the threat to impose sanctions as contained in the email of 29 December 2016, was charged in charges 3, 4 and 5. Accordingly, the appellants argued that his Honour erred in finding them guilty of contempt on the basis that charge 2 had been proved, in circumstances where he dismissed charges 3, 4, and 5. His Honour did so on the basis that those charges essentially duplicated charge 2.
2. To understand the appellants' submissions and, indeed, the case as it was run below, it is necessary to set out charges 3, 4 and 5. "3 The statements made by you as representatives of the Sydney Beth Din set out in [charges 1 and 2] interfered or attempted to interfere with the rights of [the respondents] to have unhindered access to any constitutionally established court of civil jurisdiction in Australia for the determination of: a. the alleged dispute between [the respondents] and [SalesPort] and [Mr Kuzecki] as referred to in the Summons dated 14 December 2016 issued by the Sydney Beth Din; and b. [the respondents'] rights and obligations with respect to the Sydney Beth Din Summons dated 14 December 2016 and any arbitral proceedings proposed to be conducted by the Sydney Beth Din in relation to the alleged dispute between [the respondents] and [SalesPort] and [Mr Kuzecki]. 4 Further, the statements made by you as representatives of the Sydney Beth Din set out in [charges 1 and 2] were calculated to intimidate and apply pressure upon [Mr Barukh] aimed at deterring or preventing him from bringing any proceedings in a constitutionally established court of civil jurisdiction in Australia in respect of the Sydney Beth Din Summons and the underlying dispute referred to in the Sydney Beth Din Summons, and instead have him comply with the Sydney Beth Din Summons and submit to the jurisdiction of the Sydney Beth Din to conduct binding arbitration proceedings under either the Commercial Arbitration Act 2010 (NSW) or the International Arbitration Act 1974 (Cth). 5 The interference or attempted interference by you and the pressure applied by you referred to in [charges 3 and 4] was intimidating and improper and constitutes unacceptable interference with the due administration of justice in a constitutionally established court of civil jurisdiction in Australia and amounts to contempt of Court."
3. The appellants accepted that the proceedings below had been conducted on the basis that charge 2 was to be read in conjunction with charges 3, 4 and 5, and submitted that that was the only way any meaningful content could be given to charge 2. They submitted that charge 2, when read with charges 3, 4 and 5, involved an allegation of interference with the administration of justice in a particular case, which, on their submissions, had not been made out.
4. They submitted that the primary judge erred in dealing with charge 2 as involving an allegation of interference with the administration of justice generally because first, no such contempt had been charged; and secondly, the email of 29 December 2016 had been communicated privately, such that the only person who could have been affected by it was Mr Barukh. The appellants referred, by way of comparison, to the contempt found in Attorney-General v Times Newspapers at 295 and Harkianakis v Skalkos at 28, where public communications were involved.
5. The appellants also submitted that there was no "real risk" that the conduct particularised in charge 2 had a tendency to interfere with the course of justice in any particular case. They pointed out that neither of the cases referred to in charge 3 was pending or imminent at the time the email of 29 December 2016 was sent to Mr Barukh. The first time any reference was made to the fact that Mr Barukh was proposing to commence legal proceedings was in Lazarus Legal Group's letter of 27 January 2017, when reference was made to commencing proceedings against the Beth Din. The appellants pointed out, as the primary judge recognised, that there was no realistic possibility that Mr Barukh would commence proceedings in respect of the alleged commercial dispute between Live Group and SalesPort.
6. The appellants further submitted that if what his Honour had in mind were proceedings other than those alleged in charge 3, then: such a finding was outside the particulars of the charge; was made in the absence of any evidence that there was a real risk that the content or sending of the email was likely to or did deter or prevent Mr Barukh from bringing other unidentified proceedings; and was too abstract and theoretical to have any practical reality: see John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; [1955] HCA 12 at 372.
7. The respondents agreed that the contempt proceedings had been conducted before the primary judge on the basis that the general allegation of contempt was made specific by the allegation in charge 2 and that the "particular vices" of the conduct the subject of charge 2 were further spelled out in charges 3, 4 and 5. They contended, however, that charge 2 was itself sufficient and complete to maintain a finding of contempt.
8. The respondents denied that they had prosecuted the case solely on the basis of an interference with the administration of justice in a particular case. Although as at 29 December 2016, Mr Barukh had not commenced, nor indicated an intention to commence, any legal proceedings, the respondents had invoked, at a general level, their right to have the alleged commercial dispute determined by a civil court. They submitted that this was the case they had brought against the appellants.
9. The respondents submitted that his Honour had correctly understood their case when, at [270]-[271], his Honour "focused on the threat to the authority of the Court as the ultimate decision maker". The respondents further submitted that although the threat of sanctions had been contained in a private communication, had they been imposed, they would have manifested in "humiliating and potentially damaging public consequences" for Mr Barukh.

Charge 6: letter of 28 February 2017

1. The appellants submitted that, like charge 2, charge 6 did not contain an allegation of contempt. Rather, it referred only to the content and sending of the letter of 28 February 2017. They submitted that the case below had been conducted on the basis that charge 6 was only meaningful when read in conjunction with charge 9, which was in the following terms: "9 Notwithstanding your undertakings to the Court to not take any steps to impose any sanctions against [the respondents] until further order, the threats referred to in [charge 6], above, of the sanctions being applied at some future time, even if the Supreme Court grants declaratory relief declaring that the Sydney Beth Din does not have jurisdiction to conduct arbitration proceedings under either the Commercial Arbitration Act 2010 (NSW) or the International Arbitration Act 1974 (Cth), remain and are calculated to intimidate and apply pressure upon [Mr Barukh] aimed at deterring or preventing him from continuing with the Supreme Court proceedings and instead have him comply with the Summons dated 14 December 2016 issued by the Sydney Beth Din."
2. The primary judge held, at [295], that charge 9 failed. It followed, on the appellants' submissions, that charge 6 could not have been made out and ought to have been dismissed.
3. The appellants submitted that the primary judge failed to identify any proceedings that may have been interfered with by the sending of the letter of 28 February 2017. They contended that the only proceedings that were properly the subject of charge 6 were the proceedings before his Honour and that the letter of 28 February 2017 did not have a tendency to interfere with those proceedings.
4. The appellants submitted that the letter was not sent with a view to deterring or preventing Mr Barukh from continuing with the proceedings before the primary judge. They pointed out that this had been accepted by the primary judge at [284]-[285], and that, at the very least, his Honour did not make an express finding that the letter was intended to deter or prevent Mr Barukh from continuing the proceedings he had commenced in the Supreme Court.
5. The appellants submitted that the letter of 28 February 2017, when read in conjunction with a second letter enclosed in their email of that date, was properly construed as an offer to cooperate. The second letter attached proposed short minutes of order for a directions hearing listed for 1 March 2017. In essence, the short minutes proposed orders in relation to the filing of evidence.
6. The appellants submitted that if his Honour's finding at [284]-[286] was that the letter of 28 February 2017 had the tendency to interfere with the administration of justice generally, that finding was not open to his Honour as it was not the contempt charged.
7. The respondents did not challenge the dismissal of charge 9. However, they submitted that, like charge 2, charge 6 could stand on its own. They submitted that as charge 6 referred to the making of a threat of sanctions in a specified factual context, namely, the commencement of the proceedings before the primary judge, the primary judge did not err in considering whether the threat made in that context represented a continuation of the sanctions originally threatened on 29 December 2016, and whether that conduct tended to interfere with the administration of justice generally.
8. The respondents submitted that the primary judge did not err in interpreting the letter of 28 February 2017 as a continued assertion of the threat of sanctions and in rejecting the appellants' submission that the letter and the proposed short minutes of order merely constituted an offer to cooperate.

Consideration

1. The first issue for determination is whether the primary judge's findings of contempt were those that were charged.
2. It is well established that a person should only be found guilty of contempt if the specific charge, to which the alleged contemnor has had an opportunity to respond, has been proved beyond reasonable doubt: see Coward v Stapleton (1953) 90 CLR 573; [1953] HCA 48 at 579-580.
3. Coward v Stapleton was concerned with the question whether, before a person is committed for contempt, the person must be informed of the specific offence alleged and be given the opportunity to answer that charge. In respect of the former, the Court (Williams ACJ, Kitto and Taylor JJ) stated, at 579-580, that: "… it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him: In re Pollard; R. v. Foster; Ex parte Isaacs. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations ..." Their Honours observed that this principle rested on "accepted notions of elementary justice" and, accordingly, "must be rigorously insisted upon".
4. This principle was approved in Lane v Registrar of Supreme Court of New South Wales, although in that case, it was held that the finding of contempt could not stand in circumstances where the Court had relied on matters not alleged in the charges, the charges were not amended to reflect the new basis on which the appellant's convictions rested and the formal order made was that the appellant was guilty of the charges as set out in the statement of charge.
5. In Inghams Enterprises v Timania, the Court (Tamberlin, North and Dowsett JJ) summarised, at [32], the relevant legal principles to be applied in relation to the formulation of a statement of charge. Relevantly, their Honours stated as follows: "(b) parties accused of contempt are entitled to know the gist or substance of the charges against them: Coward v Stapleton (1953) 90 CLR 573 at 579-80 per Williams ACJ, Kitto and Taylor JJ; (c) where there is a statement of charge, the gist or substance of the allegations must be contained within the statement of charge and any particulars, and any deficiency cannot be remedies by resort to affidavit evidence: Carew Reid v Carew Corp Pty Ltd (unreported, WASC, Full Court, No 5 of 1993, 23 April 1993) …; Harmsworth v Harmsworth [1987] 1 WLR 1676 at 1683; [1987] 3 All ER 816 at 821; Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 at [31] per Lee and Finn JJ (BHP Steel); Australian Competition and Consumer Commission v Info 4PC.com Pty Ltd (2002) 121 FCR 24; [2002] FCA 949 at [9] per Nicholson J; … (f) parties accused of contempt are entitled to conduct their case on the basis that the only charge which they are required to meet is that which has been particularised against them: BHP Steel at [31] per Lee and Finn JJ; Australian Building Construction Employees and Builders Labourers Federation v Minister of State for Industrial Relations (1982) 43 ALR 189 at 206-7 per Evatt and Deane JJ (Builders Labourers Federation)."
6. The position in Ingham Enterprises v Timania was different from the position in this case. In that case, the statement of charge went through three iterations. The first was the initial charge. The second occurred after the conclusion of the evidence and following discussion between the trial judge and counsel. The third was contained in the judgment itself and was the charge in respect of which the appellants were found guilty. The charged parties were not given an opportunity to address the charges as formulated in the judgment or to call evidence in respect of that charge.
7. The Court observed, at [34]: "The concept of the 'gist' of the charge is one that should be approached with some caution in the area of contempt, where precision in formulation is critical. This concept can tend to distract attention away from the language of the original statement of charge to an inference as to what is the intent of the statement of charge. In this case, the reformulation by counsel for Timania and subsequently by the primary judge is based on the evidence of communication to Timania that is set out in the affidavits. Both amended statements of charge were formulated to accord with the evidence rather than to accord with the substance of the defective original statement of charge."
8. The caution in this last observation is important. It is not sufficient that a charge of contempt be framed in general terms and a finding of a specific contempt made if the evidence eventually satisfies the court that what occurred was sufficient to constitute a contempt. However, that was not the position in the present case.
9. The appellants were charged with specific conduct based on two separate communications: the first, the email of 29 December 2016, was the subject of charges 2 to 5; and the second, the letter of 28 February 2017, was the subject of charges 6 and 9.
10. The appellants submitted that neither charge 2 nor charge 6 contained an allegation of contempt and that, as formulated, those charges only referred to the sending and content of the two communications. We do not accept that submission.
11. The statement of charge, as set out above at [55], opens with the statement "You are charged … with contempt of Court in that:". Accordingly, charge 2 must be read as "You are charged … with contempt of Court in that: … On 29 December 2016, you … made the following threat to [Mr Barukh] …". Similarly, charge 6 must be read as "You are charged … with contempt of Court in that: … On 28 February 2017 … you … made the following threat to [Mr Barukh]".
12. Properly characterised, charges 2 and 6 specified the conduct alleged to have given rise to the allegation of contempt stated in the opening of the statement of charge, namely that by sending each of those communications, the appellants had committed a contempt of court.
13. In so far as charge 2 is concerned, the appellants acknowledged that the case was conducted on the basis that the conduct in charge 2 was argued to be a contempt of court on the basis of the matters alleged in charges 3, 4 and 5. They did not contend that they were deprived of the opportunity to adduce evidence or make submissions in respect of those charges.
14. It is apparent, both from the manner in which charges 2, 3, 4 and 5 were pleaded, and the manner in which the case was conducted, that charges 3, 4 and 5 were particulars of or explain why the conduct set out in charge 2 constituted a contempt of court. Accordingly, not only were the appellants aware that it was the email of 29 December 2016 that was alleged to constitute the contempt, but they were also aware of why it constituted a contempt, as stated in charges 3, 4 and 5.
15. It might have been preferable for the statement of charge to have pleaded what is contained in charges 3, 4, and 5 as particulars of charge 2, or even not to have charged them at all, given that they are as much arguments as they are particulars. However, given the way in which the case was conducted, the fact that those charges were dismissed does not impinge upon the fact that charge 2 was, and was treated as, a stand alone charge. That is why his Honour treated charges 3, 4 and 5 as duplications of charge 2 and thus dismissed them. There was no error in his Honour not thereby also dismissing charge 2, assuming of course, that contempt was proved on the criminal standard. That is a different question and is considered below.
16. Charge 6 standing on its own, was a charge of contempt in respect of an interference with the administration of justice generally, and the case was conducted in that way. The same conduct, that is, the letter of 28 February 2017, was also alleged as a contempt in charge 9. Charge 9, as pleaded, alleged an attempt to interfere in the administration of justice in a particular case, namely, the proceedings before the primary judge seeking declaratory and injunctive relief. Charges 6 and 9 were thus independent charges of different types of contempt.
17. His Honour dismissed charge 9 and the respondents do not challenge that part of his Honour's judgment. However, as charge 6 was a separate alleged contempt, there was no error in his Honour not also dismissing charge 6. In other words, charge 6 was not dependent on the matter charged in charge 9.
18. In our opinion, the allegation in each of charges 2 and 6 was that the appellants' conduct tended to interfere with Mr Barukh's right to have a civil court determine the alleged commercial dispute and, accordingly, the charge was of an interference with the administration of justice generally. Accordingly, as his Honour did not make a finding of contempt that was not charged, the grounds of appeal the subject of the first issue have not been made out.
19. There is, as we have said, a separate question raised under the second issue on the appeal as to whether the communications of 29 December 2016 and 28 February 2017 were attempts to interfere with administration of justice generally and thereby constituted a contempt of court.

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

1. The question whether improper pressure was placed on Mr Barukh not to exercise his right to have a civil court determine the alleged commercial dispute depends on the antecedent question of whether the threats made by the appellants were directed to Mr Barukh's failure to attend upon the Beth Din or whether they were directed to the bringing of proceedings in a civil court. The appellants submitted that this was the key issue in the case and, indeed, the only real issue.
2. The primary judge found, at [254] and [266], that the threat of sanctions for failing to attend upon the Beth Din was not distinct from the threat of sanctions for resorting to the civil courts. His Honour considered that this was particularly apparent from the context in which the threats in the email of 29 December 2016 were made, namely, Mr Barukh's suggestion two days earlier that the alleged commercial dispute be brought in a civil court.

Conflation error

1. The appellants contended that the sanctions threatened in the communications of 29 December 2016 and 28 February 2017 should not be construed as being directed against Mr Barukh approaching a civil court. According to the appellants, the sanctions were only directed to Mr Barukh's failure to attend upon the Beth Din. They submitted that the reason they threatened to impose the sanctions was, as Rabbi Gutnick stated in his affidavit evidence, "to try and convince [Mr Barukh] to comply with his religious obligations and attend the Din Torah". Rabbi Gutnick said that he had "no knowledge or suspicion" at that time that Mr Barukh was contemplating bringing proceedings in a civil court.
2. The appellants contended that the primary judge "conflated" the reason for their having threatened the sanctions with another "extraneous" reason, namely, a threat of sanctions for resorting to the civil courts without the permission of the Beth Din. In this regard, they submitted that there were two errors in his Honour's findings.
3. First, they contended that his Honour did not identify the proceedings which he considered Mr Barukh was being pressured to abandon. The appellants submitted that there were no such proceedings. Secondly, the appellants submitted that his Honour should have construed their statements in the email of 29 December 2016 and the letter of 28 February 2017, that Mr Barukh acquiesce in "the Beth Din process in accordance with Jewish law" and that Mr Barukh submit to the jurisdiction of the Beth Din "as his religious obligations require" strictly and in their favour.
4. The appellants relied upon the decision of Mason P in Harkianakis v Skalkos, in which his Honour adopted the following observation of Hope JA in Warringah Shire Council v Manly Daily Pty Ltd (New South Wales Court of Appeal, 27 August 1985, unreported): "If a statement is reasonably capable of more than one meaning and one of those meanings does not involve contempt, a charge based upon that statement is … not made out." See also Deen v Stronghearts Pty Ltd (1998) 8 Tas R 432 at 442; John Fairfax v McRae at 370; Attorney-General v Times Newspapers at 303.
5. The appellants asserted that the unchallenged evidence was that if Mr Barukh had complied with the Beth Din summons and then resorted to a civil court without the Beth Din's permission, sanctions would not have been imposed against him for so doing. In this regard, the appellants relied upon Rabbi Gutnick's evidence in the course of re-examination. In answer to questions asked by the primary judge, Rabbi Gutnick said that the moment a summons has issued from the Beth Din requiring both parties to attend, neither party can resort to a civil court without the permission of the Beth Din from the perspective of Jewish law. However, Rabbi Gutnick continued as follows: "Q. And just if I could then ask about another aspect of your evidence this morning in connection with the answer that you have just given, if in that circumstance a summons, that is a summons had issued, requiring both sides to attend, and one of those sides resorted to a civil court without the permission of the Beth Din, in contravention of Jewish law then is it the practice of the sitting Beth Din to apply religious sanctions? A. No. Q. Why is that? A. Because we believe in the rule of Australian law and we would never do anything outside law. HIS HONOUR Q. So the sanction would flow from the refusal to attend the Beth din, if any flowed? A. Correct."
6. Rabbi Ulman gave affidavit evidence to the same effect as follows: "Nothing that I have said or done was intended by me to interfere with Mr Barukh's access to this or any other civil court. It is my belief that Halacha requires that an observant Jew should not sue another observant Jew in a civil court without the permission of a Beth Din. However, my practice, and the practice of the Beth Din for so long as I have been a member, is never to impose any religious sanctions on any observant Jew who does not comply with this Halachic obligation. Instead, my practice, and the practice of the Beth Din for so long as I have been a member, is to regard compliance as being entirely a matter of personal conscience. It is my understanding that the approach of not interfering in anyone's right of access to the civil courts is in accordance with another important Halachic obligation, which is to comply with and respect the law of the land."
7. Rabbi Gutnick said that if resort was had to a civil court without the permission of the Beth Din after a summons had issued, that would be a matter "between [that person] and God". The appellants argued that it was wrong for the primary judge to have focussed on the content of the Halachic rule, and that the focus should have been on whether the appellants' conduct included a threat that the rule would be enforced, which the appellants contended would not have happened.
8. The respondents submitted that his Honour's reasons disclosed no such "conflation" error. Their argument was essentially that a private tribunal, whether religious or not, that claims exclusive jurisdiction over a dispute and threatens expulsion or other sanctions if a member does not accept that exclusive jurisdiction, commits a contempt.
9. The respondents accepted, however, that if, under the civil law, a tribunal was permitted to have exclusive jurisdiction and sanction parties for failing to submit to its jurisdiction, there would be no contempt. This could be done, for example, by contract, or pursuant to an arbitration clause. They submitted that such cases are a recognition of and, indeed, part of the civil law, as it is the civil law that permits that process. They submitted that in this case, however, there was no such contract or arbitration agreement in existence that would underpin any proper assertion of exclusive jurisdiction.
10. The respondents submitted that the correspondence between the parties indicated that they were not permitted to have the alleged commercial dispute adjudicated in a civil court and that the Beth Din had exclusive jurisdiction over any commercial dispute. So much was expressly stated in the email of 29 December 2016.
11. The respondents submitted that: "The only circumstance in which the appellants would contemplate the possibility of an observant Jew participating in a civil court resolving a civil dispute is where the Sydney Beth Din has given express permission to do so and the other side has refused to abide by the Beth Din's summons."
12. The respondents also relied upon Rabbi Gutnick's affidavit evidence that: "It is a fundamental tenet of Judaism that all Jews must seek resolution of their conflicts within the Halachic system rather than in the secular courts ... regardless of any arbitration agreement that may ... have been signed by the parties."
13. Further, as the respondents pointed out, the primary judge did not accept Rabbi Gutnick's oral evidence, given on 19 March 2017, that he did not intend to force Mr Barukh to have the alleged commercial dispute determined by the Beth Din, nor his affidavit evidence that had Mr Barukh attended a directions hearing and stated that he did not want to have the dispute heard by the Beth Din and, instead, was going to a civil court, "that would have been the end of it". As his Honour said in the penalty judgment at [158]-[159], this evidence was contrary to the terms and tone of the correspondence between the parties.
14. The respondents submitted that given the assertion of exclusive jurisdiction, the threat of sanctions to procure that to happen constituted an interference with the course of justice generally.
15. The respondents also relied upon the correctness of his Honour's finding at [284] that the threats in the letter of 28 February 2017 could only be seen as a continued assertion that sanctions would be imposed for Mr Barukh's failure to attend upon the Beth Din and recognise its jurisdiction in respect of the alleged commercial dispute.

Improper pressure

1. In relation to the question of improper pressure, the appellants submitted that, assuming that the primary judge was correct to find that the conduct charged in charges 2 and 6 applied pressure to Mr Barukh, his Honour was incorrect to find that such pressure was "improper" such as to constitute a contempt. The appellants advanced six propositions in support of this submission, each of which is set out below, together with the respondents' responses.
2. First, the appellants submitted that the primary judge misunderstood the facts. They submitted that, contrary to his Honour's finding at [269] that the sanctions were threatened because Mr Barukh had a philosophical disagreement with the jurisdiction of the Beth Din, the sanctions were a religious response to an undoubted religious transgression and the appellants were acting under a Halachic authority.
3. The respondents submitted that there was no error in his Honour's finding at [269], as the threats were a disproportionate response to the fact that Mr Barukh held a different view as to the authority of the Beth Din in respect of the alleged commercial dispute.
4. Secondly, the appellants submitted that his Honour erred in his reasons at [270], set out above at [66]. They contended that his Honour's finding that "[t]he Beth Din is not entitled to insist - under threat of religious sanction - it is the only method by which an observant Jew is entitled to have his or her dispute determined", was an example of the conflation error of which they complained. They further contended that his Honour's finding that "[t]he Beth Din intends itself to be an exclusive jurisdiction over observant Jews, otherwise penalties ensue", contained a factual error. They asserted that the evidence was that the Beth Din does not impose penalties for invoking the jurisdiction of the civil courts and that his Honour appears not to have taken that evidence into account.
5. The respondents relied upon their submissions that there was no conflation error. They also submitted that the evidence and, in particular, the statements contained in the email from the Rabbi Schlanger of 22 December 2016, set out above at [28], supported his Honour's finding.
6. Thirdly, the appellants submitted that from a Halachic perspective, the sanctions threatened were a justifiable and legitimate response to Mr Barukh's religious transgression, as he professed to be an observant orthodox Jew. They submitted that pressure is not improper if it is authorised by the parties' shared beliefs: see Attorney-General v Times Newspapers at 318-319; "by analogy", Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 at 149; and Greenberg v Greenberg 238 AD 2d 420 (1997) at 421.
7. The respondents submitted that this contention was not supported by authority and was contrary to the conclusions in Hillfinch Properties v Newark Investments and Yeshiva Properties v Lubavitch Mazal, as discussed above.
8. Fourthly, the appellants submitted that the pressure involved was contained in private communications and that there were a number of considerations relevant to the evaluation of whether private pressure constitutes contempt which the primary judge failed to take into account: see Bhagat v Global Custodians Ltd at [38], [39], [41], [42], [44], [51] and [54]. Those considerations were: (a) The pressure was applied without any intention to interfere with the administration of justice, but to cause Mr Barukh to attend upon the Beth Din. (b) The pressure was not unlawful. (c) The pressure was justified according to Halachic law, which required compliance with the summons issued. (d) The pressure was applied with moderation.
9. The respondents submitted that none of these factors assisted the appellants because: (a) The assertion in para (a) was contrary to the evidence. Rabbi Gutnick had agreed in cross-examination that the statement in the email of 29 December 2016, that the sanctions would apply unless Mr Barukh recanted and acquiesced in the Beth Din process, was intended to require him to participate in the whole process of the Beth Din, including signing an arbitration agreement. The appellants accepted that such an arbitration agreement would have been enforced under the International Arbitration Act. (b) The assertion in para (b) overlooked that the communications were held to constitute a contempt. (c) The assertion that the Beth Din does not impose penalties for invoking the jurisdiction of the civil courts was contrary to the content of the emails of 22 and 29 December 2016, and the letter of 28 February 2017. (d) The threatened sanctions were "significant and very serious". As the primary judge found, the threats involved "inflicting serious reputational, hurtful and humiliating pressure" on Mr Barukh. Further, as Rabbi Gutnick agreed in cross-examination, the threats were not "hollow threats".
10. Fifthly, the appellants submitted that the primary judge did not take into account a number of subjective circumstances that substantially diminished Mr Barukh's vulnerability to the threatened sanctions. This included that: he was represented by solicitors and, by the time of the letter of 28 February 2017, also by counsel; his communications with the Beth Din were conducted on his behalf by his solicitors; prior to the email of 29 December 2016, he had already declared his intention not to answer the Beth Din summons and, thereafter, "sturdily maintained that position". In brief, the allegation was that Mr Barukh was neither "overawed" nor "cowed" by the authority of the Beth Din.
11. The respondents submitted that the fact that Mr Barukh had legal representation could not change the fact that he was an observant Jew who fell within the class of persons who would be affected by the threat of sanctions and who had given unchallenged evidence as to the subjective effect of those threats on him.
12. Sixthly, the appellants submitted that the evaluation of whether the pressure they applied was improper involved balancing the public interest in the due administration of justice with other competing public interests, including freedom of discussion and opinion and freedom of religion. The appellants contended that the primary judge gave no weight to the religious beliefs of the appellants and Mr Barukh.
13. The respondents submitted that the primary judge did give weight to the religious beliefs of the parties: see at [269]-[270]. They further asserted that none of the authorities upon which the appellants relied supported the proposition that the court would permit its authority to be challenged or subverted in the name of a competing public interest. They contended that primacy cannot be given to a competing public interest where there would be a real prejudice to the administration of justice: see Attorney-General v Times Newspapers at 294 (but see the observations of Lord Simon at 319-320).

Consideration

1. As the discussion of the authorities at [70]-[85] above indicates, the principles governing contempt of court are clear, including where the allegation is one of improper pressure having been exerted upon a party, as is the case here. However, as the cases also demonstrate, the application of those principles is not necessarily straightforward.
2. The contempt found by his Honour in respect of charge 2 was that the email of 29 December 2016 had a real tendency to interfere with the administration of justice generally. His Honour's reasons for that finding are set out above at [65]-[66]. Putting aside the appellants' argument that the contempt charged was one of interference with the administration of justice in a particular case, which we have rejected, the central question in determining whether his Honour erred in finding charge 2 was proved was whether the threat of sanctions, properly understood, was confined to requiring Mr Barukh to attend upon the Beth Din.
3. The context in which this question has to be considered is that Mr Barukh first became aware of the alleged dispute with Mr Kuzecki arising out of the commercial relationship between Live Group and SalesPort. In identifying the alleged dispute in that way, we recognise that Mr Kuzecki named Mr Barukh, his mother and sister as respondents to the claim. However, it is clear that the only relevant dealings were between the two companies. When Lazurus Legal Group stated, in its letter of 20 December 2016, that Mr Barukh would not attend the Beth Din as it was not the appropriate forum in which Mr Kuzecki's grievances in respect of that dispute should be aired, Rabbi Schlanger responded, in an email of 22 December 2016, that members of the Jewish faith: "… are obliged to have their disputes heard in accordance with Jewish Law at a Beth Din. They are not permitted to seek adjudication at a civil court without the express permission of a Beth Din when the other side has refused to abide by a Beth Din summons."
4. Against that background, the first part of the email of 29 December 2016 made the following assertions: the Beth Din was a court of law; its jurisdiction applied to all members of the Jewish Faith; this was particularly so in the case of those who considered themselves to be observant Jews, as did Mr Barukh; Mr Barukh did not have the option to avoid his responsibility in accordance with Jewish law; and the Beth Din was able to adjudicate the matter.
5. These assertions were all statements as to what was required of Mr Barukh as an observant Jew, at least in so far as the appellants interpreted Jewish law to be. Although we consider that the matter is finely balanced, we are of the opinion that these statements did not of themselves constitute an interference with the administration of justice generally. However, the statements cannot be divorced from what preceded them, namely, the statement in the email of 22 December 2016 that members of the Jewish faith are not permitted to seek adjudication in a civil court, unless there was something in the email of 29 December 2016 which withdrew, qualified or modified that statement. There is no such statement.
6. The principal message conveyed by the balance of the email was that: unless the Beth Din was advised by 26 January 2017 that Mr Barukh had "recanted" and acquiesced to the Beth Din process, sanctions would apply; further sanctions would apply should Mr Barukh "maintain his recalcitrance"; and Mr Barukh should "not … underestimate the resolve of the Beth Din in ensuring Jewish Law is adhered to especially with those who profess to adhere to the tenets of Orthodoxy".
7. In our opinion, this part of the email can only be understood as a requirement or demand that Mr Barukh not persist in his claim that any dispute between him and Mr Kuzecki ought properly be brought in a civil court. There is nothing in the first part of the email that qualifies or ameliorates anything said in this part of the email. Read as a whole, the meaning of the email is clear. In our opinion, the requirement or demand in the email goes beyond a statement as to what is required or expected of an observant Jew. It was an unambiguous threat that sanctions would be imposed if Mr Barukh persisted in asserting that the alleged commercial dispute be resolved in a civil court.
8. The pressure on Mr Barukh was considerable and improper for the following reasons.
9. First, it is not correct to say that the nomination of Rabbi Gutnick in the dispute resolution clause was a submission to the Beth Din or a recognition or acceptance that the Beth Din had, or was the only body that had, jurisdiction to determine the matter. That clause did not bind Mr Barukh to "Rabbinic Arbitration and the Beth Din process", as the letter asserted. It was no more or less than a dispute resolution clause with a nominated intermediary. On the appeal, the respondents accepted that the clause was an arbitration agreement governed by the International Arbitration Act. Whilst the nomination of Rabbi Gutnick as the intermediary or arbitrator had "standing in civil law", it was not an agreement to submit the dispute to the Beth Din or to have the dispute determined in accordance with Jewish law.
10. Secondly, the email could not only be considered to be a personal communication. Had sanctions been imposed on Mr Barukh, this would have become publicly known. Worship in a synagogue, as it is in any religious or faith-based institution, is public and may be considered to be a public act. The threatened sanctions were a serious imposition on Mr Barukh's practice of his faith. In any event, the email stated that the synagogue where Mr Barukh prays would be informed of the sanctions imposed. At that point at least, what may have been a personal communication would have become public.
11. Thirdly, the tone of the email can only be described as belligerent. It states, for example, that "[t]here are further sanctions that will be applied should [Mr Barukh] maintain his recalcitrance" and "[w]e … urge [Mr Barukh] not to underestimate the resolve of the Beth Din in ensuring Jewish Law is adhered to especially with those who profess to adhere to the tenets of Orthodoxy".
12. Fourthly, the Beth Din summons was issued not only to Mr Barukh, but also to his mother and sister, neither of whom had had any business dealings with Mr Kuzecki. Indeed, his sister had no connection with Live Group at all.
13. Fifthly, it is not an answer that Mr Barukh had legal representation. The unchallenged evidence was that the threat of sanctions had had a serious personal impact on him and that should sanctions be imposed, the impact would be significant, not only at a personal level, but also at a business and social level.
14. Sixthly, had Mr Barukh submitted to the jurisdiction of the Beth Din, he would have run the risk that if he was not successful in persuading the Beth Din that Mr Kuzecki's case was without merit, he would not have had the 'protection' afforded by the corporate veil available under civil law.
15. Seventhly, contrary to their stated position, the appellants did not establish that they had jurisdiction over matters relating to corporations or arising out of commercial disputes between corporations. Mr Barukh stated that they did not and he was not cross-examined on this. Nor did the appellants establish that they had the authority of the Jewish community in all matters such that they were entitled, as representatives of the community, exclusively to judge all issues arising between or involving members of the community.
16. This last point is fundamental in seeking to evaluate whether the Beth Din was doing no more than exhorting an adherent member of the Jewish faith to attend upon the Beth Din to resolve an alleged dispute with another member of the Jewish faith. Although corporations are legal entities and there are usually identifiable principals responsible for conducting their affairs. The corporation does not thereby become an adherent to the particular faith of its controller. This was Mr Barukh's point and at its heart is the reason why the email of 29 December 2016 constituted a contempt of court. There was no agreement between Live Group and SalesPort to accede to the jurisdiction of the Beth Din. As we have explained, the dispute resolution clause in the contract was not an accession to the Beth Din, nor an agreement to have any dispute resolved in accordance with Jewish law.
17. In our opinion, what the Beth Din was seeking to do was to prevent a corporation, in the absence of any contrary agreement, from having a potential dispute adjudicated in the only forum where the dispute was justiciable, namely, the civil courts of the state. It was seeking to do that by threatening the most serious form of religious sanctions upon a director who was an adherent of the Jewish faith.
18. Finally, contrary to the appellants' assertion that it would have been open to Mr Barukh to resort to a civil court after having complied with the Beth Din summons, it is apparent from the communications of 22 and 29 December 2016 between the parties that the Beth Din was asserting exclusive jurisdiction over the dispute. In the email of 22 December 2016, Rabbi Schlanger stated that: "All members of the Jewish Faith are obliged to have their disputes heard in accordance with Jewish Law at a Beth Din. They are not permitted to seek adjudication at a civil court without the express permission of a Beth Din when the other side has refused to abide by a Beth Din summons."
19. We consider that the primary judge was correct in finding that the email of 29 December 2016 constituted an interference with the administration of justice generally.
20. As was the case with the email of 29 December 2016, the letter of 28 February 2017 was not an isolated piece of correspondence. In this regard, both parties placed particular emphasis upon the email of 31 January 2017 from Rabbi Schlanger to Mr Barukh's legal representatives, set out above at [34]. The appellants submitted that para 3 of that email was a clear statement on behalf of the Beth Din that sanctions would only be imposed for a failure to attend upon the Beth Din and that the Beth Din did not deny an individual's right to access the civil courts.
21. The respondents pointed to the statement in para 3 of the email that: "A Jew is obliged by Jewish Law, in the first instance, to resolve his or her disputes via a Beth Din and not through the civil jurisdiction." In particular, they emphasised the statement that: "From the perspective of civil law the Beth Din acts as a binding arbitrator whose decision is then upheld by the civil courts …"
22. The Beth Din summons expressly referred to the signing of an arbitration agreement at the first directions hearing. Problematically, any determination made pursuant to such an arbitration agreement would be made in accordance with Jewish law, with which Mr Barukh did not agree in so far as Jewish law does not recognise an essential concept of the civil law that a corporation is an independent legal entity.
23. Of even greater concern was the statement in para 5, that "refusing to attend a Din Torah is not an option for someone who wishes to remain within the framework of Orthodox Jewry". Whilst that may have been the view held by the appellants, it was not one that was established on the evidence to be a tenet of Jewish law. It was, for example, not Mr Barukh's understanding and his statement to that effect was not subject to cross-examination.
24. It will be recalled that the letter of 28 February 2017 was written against the background that the appellants had given undertakings to the Supreme Court, which are set out above at [36]. The letter referred to the undertakings and stated that unless Mr Barukh complied with the orders of the Beth Din and submitted to its jurisdiction, the religious sanctions would be imposed. The letter then stated that Mr Barukh could apply to be heard by the Beth Din against the imposition of the sanctions. Alternatively, it stated that if Mr Barukh wished to "press the Supreme Court for an interlocutory injunction to prevent the Beth Din from imposing the sanctions", the appellants would cooperate to obtain an early hearing.
25. Although the appellants clearly stated their willingness to facilitate the legal process initiated by Mr Barukh, they did not resile from the position they had asserted from the beginning, namely, that they had sole jurisdiction over the dispute and would impose sanctions as a means of coercing Mr Barukh into compliance, unless prevented by the court from doing so.
26. At best, all that could be said is that the proceedings brought by Mr Barukh merely caused the appellants to stall in their intention to impose sanctions on him. We are of the opinion that what was conveyed by the letter was clear and there was no basis to understand the letter other than as his Honour did. As we do not consider that the statements in the letter were capable of more than one meaning, or that they had the meaning the appellants sought to ascribe to them, we do not consider that they gain any assistance from Harkianakis v Skalkos and the other authorities to which they referred.
27. In our opinion, there was no error in his Honour's finding that the appellants had committed the contempt alleged in charge 6.
28. Finally, we do not accept the appellants' submission that the pressure applied on Mr Barukh was not improper because it was authorised by a shared belief between the parties. To the extent that the appellants relied on Attorney-General v Times Newspapers, Meissner and Greenberg v Greenberg, we consider that these cases do not assist them in this case.
29. In Attorney-General v Times Newspapers, the respondent published a series of articles concerning pending thalidomide litigation. On the application of the Attorney-General, the Divisional Court of the Queen's Bench Division granted an injunction restraining the respondent from publishing a further proposed article, on the basis that it would be a contempt of court. This order was set aside by the Court of Appeal. The House of Lords allowed the Attorney-General's appeal.
30. Lord Simon considered the distinction between public and private pressure, observing, at 319, that: "The only difference is that private pressure on a litigant (in contradistinction to violence or bribery or public execration) might sometimes be justifiable … The justification for private pressure on a litigant might be such a common interest that fair, reasonable and moderate personal representations would be appropriate. Such common interest would not necessarily have to be monetary; a genuine, unofficious and paramount concern for the real welfare of the litigant would, in my view, be sufficient."
31. In Meissner, the question was in what circumstances inducing a plea of guilty constitutes an attempt to pervert the course of justice. Deane J stated that the parties' relationship may be a significant consideration. His Honour stated, at 149: "… circumstances may arise in which the borderline between what constitutes legitimate persuasion of an accused person to plead guilty and what constitutes the offence of attempting to pervert the course of justice will be difficult to discern. When those circumstances arise, the relationship between the parties and an overall perception of real criminality are likely to be of particular significance. Thus, for example, a degree of pressure which would be quite legitimate if exerted by an accused's own lawyer acting solely in the accused's interests may be completely unacceptable if exerted by a stranger acting for a collateral and selfish purpose of his or her own." (footnote omitted)
32. To the extent that a "common interest" or the "relationship between the parties" may be relevant, in this case, the evidence of Rabbi Gutnick and Mr Barukh makes clear that the appellants and Mr Barukh did not share the same beliefs in respect of the Beth Din's jurisdiction to adjudicate upon commercial disputes. Both Attorney-General v Times Newspapers and Meissner also cite as examples the exertion of pressure for the benefit of and in the interests of the litigant. The threats issued by the appellants cannot be said to have been in the interests of or for the welfare of Mr Barukh.
33. The appellants sought to draw an analogy between the present case and Greenberg v Greenberg. In that case, the appellant agreed to submit all disputes with the respondent, her husband, to a rabbinical court. The issue on appeal was whether a release executed by the appellant discharging her husband from his pre-existing support obligations was extracted under duress. The Court found that the release signed by the appellant was voluntary, stating that: "We find that the wife freely submitted herself to the jurisdiction of the Bais Din and that this was a manifestation of her having voluntarily undertaken obedience to the religious law which such tribunals interpret and enforce. The 'threat' of a siruv, which entails a type of ostracism from the religious community, and which is prescribed as an enforcement mechanism by the religious law to which the petitioner freely adheres, cannot be deemed duress … The record in the present case does not support a finding that the wife was subjected to any particular coercion greater than that which is intrinsic in the case of any member of a religious community who, as a matter of conscience, feels obligated to obey the laws of his or her religious organization, or to follow the decrees of a religious court, and who consequently exposes himself or herself to the ecclesiastical sanctions available for the enforcement of such decrees or such law …"
34. The present case is distinguishable from Greenberg v Greenberg in two respects. First, unlike the appellant in Greenberg v Greenberg, Mr Barukh did not accept the jurisdiction of the Beth Din in relation to the alleged commercial dispute. Secondly, Greenberg v Greenberg concerned a personal matter, as distinct from a commercial matter. As Mr Barukh accepted in his evidence, the Beth Din has jurisdiction over such matters.

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

Primary judge's reasons

1. The primary judge, at [137] of the penalty and costs judgment, stated that: "… 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."
2. In determining the penalty to be imposed upon each of the appellants, his Honour took into account the following considerations: that Mr Barukh had done no more than indicate his view that a civil court was the appropriate forum for the determination of any commercial dispute between the parties; that the appellants had responded with an "autocratic and uncompromising response"; that he did not accept Rabbi Gutnick's evidence that the sanctions were not intended to force Mr Barukh to have the alleged commercial dispute determined by the Beth Din, his Honour finding that that evidence was contrary to the contemporaneous communications between the parties; that even when Mr Barukh commenced proceedings, the appellants' response was merely to defer the sanctions and not to abandon them; that there had been no hint of conciliation on the appellants' part or room for any other view but theirs in relation to the asserted authority and jurisdiction of the Beth Din; that they had every intention of causing reputational damage to Mr Barukh; and that, likewise, they intended to disseminate widely his admonishment in the relevant community by the imposition of the sanctions.
3. Although his Honour accepted, at [168], that the appellants had dedicated their lives to serve the Jewish community in Australia and elsewhere, that did not, in his Honour's view, excuse their conduct. His Honour also rejected, at [169], that the fact that the appellants had suffered significant embarrassment and distress as a result of being found guilty of contempt of court was such as to have any material effect in mitigation of sentence. His Honour likewise rejected as a mitigating factor that there had been publicity of the contempt convictions. In his Honour's view, any humiliation caused by this reporting was the product entirely of their own behaviour.
4. His Honour accepted "unequivocally", at [170], that there was little risk, if any, that the appellants would repeat the same conduct, and that Rabbi Gutnick had taken steps to ensure that the Australian, New Zealand and United Kingdom Beth Din were aware of the decision. However, he considered that general deterrence nonetheless remained important given the importance of the administration of justice and the need to be vigilant to ensure its integrity is maintained.
5. His Honour noted that the appellants had only belatedly proffered a sworn apology to the court. Whilst his Honour accepted that an apology is a relevant factor, because of its "belated extraction", he gave it little weight.
6. His Honour imposed one penalty for the two charges made out, as he considered that they were part of the same conduct. He imposed a fine of $20,000 on Rabbi Gutnick and $10,000 on each of the other appellants. In doing so, his Honour stated, at [172], that those penalties should be viewed in light of the costs orders made.

Parties' submissions

1. The appellants accepted that if the primary judge's findings of contempt were upheld, it was necessary for them to demonstrate House v The King error in respect of the penalties imposed: see House v The King (1936) 55 CLR 499 at 505. In this regard, they contended that his Honour had mistaken certain factual matters and had failed to give any weight to a number of mitigating circumstances. The appellants' principal complaint was that his Honour erred in finding that they had an intention to interfere with the administration of justice. They submitted that his Honour had failed to take into account that there had been no actual interference in the administration of justice.
2. The appellants submitted that the circumstances in which the contempt occurred did not warrant the imposition of any penalty at all. Alternatively, they submitted that the penalties imposed were manifestly excessive.
3. The respondents submitted that the appellants failed to demonstrate that the primary judge's exercise of discretion had miscarried such as to warrant appellate intervention.

Consideration

1. As we have concluded that the penalties imposed were manifestly excessive in the circumstances, it is not necessary to refer to the specific grounds of challenge raised by the appellants, although it is necessary to refer briefly to his Honour's finding that the appellants intended to interfere with the administration of justice. Before doing so, it is necessary to refer to certain observations his Honour made as to the relationship between the penalty he was proposing to impose and the costs orders he proposed to make.
2. It appears that his Honour considered the appellants' conduct, which he described as "entirely out of order and contrary to the very principles of Halachic law the Rabbis are bound to uphold", to be relevant to the costs orders that ought to be made. As we explain below, we consider that this was in error. Although we consider that the appellants should pay the respondents costs in the court below, we have concluded that his Honour erred in awarding indemnity costs.
3. Nonetheless, even though the costs order we propose to make is less onerous than the orders imposed by his Honour, we consider that the penalties imposed were excessive. This was a first offence and, although the appellants' conduct was, as we have described it, belligerent, and was maintained in the face of Mr Barukh's reasonable request that the Beth Din summons and the threat of sanctions be withdrawn, his Honour did not consider that their conduct was contumacious. Rather, as we describe below, we consider that the appellants obstinately asserted their supposed authority over what was an alleged commercial dispute between two companies, the directors of whom were Jewish. It was their belligerence and the nature and extent of the threatened sanctions that constituted the interference with the administration of justice in the face of Mr Barukh's reasoned stance that this was not a matter over which the Beth Din had authority.
4. His Honour was also satisfied that there was little risk that the appellants would repeat the same conduct, such that specific deterrence was not something to which it was necessary to have any particular regard.
5. We are also of the opinion that his Honour erred in giving little weight to the humiliation the appellants suffered as a result of publicity. We consider that to be a form of extra-curial punishment to which his Honour should have had regard: see Einfeld v The Queen (2010) 266 ALR 598; [2010] NSWCCA 87 at [98]-[100].
6. That leaves the question of what penalty ought to be imposed and whether there should be any discrimination in the penalty imposed on each appellant. His Honour imposed the most severe penalty on Rabbi Gutnick, whom his Honour found was the principal actor and, as a result, should bear the greater responsibility. Whilst we consider that there is merit in that finding, the fact is that the first, second and third appellants constituted the Beth Din and it was in respect of the asserted jurisdiction of the Beth Din that the sanctions were imposed. For that reason, we consider that they were equally responsible.
7. In the circumstances, we consider that an appropriate penalty to impose on each of the first, second and third appellants is $7,500.
8. The position of the fourth appellant is different. Although we consider that he was more than a mere amanuensis for the Beth Din, and was actively engaged in meetings and communications with Mr Barukh, he did not constitute the Beth Din. Rather, his role was as Secretary and Registrar, and it is apparent from the correspondence that he was communicating on behalf of the Beth Din. We consider that the appropriate penalty in the circumstances is a fine of $2,500.

The cross-appeal

1. Before considering the fourth issue relating to the costs orders made by his Honour, it is necessary to say something about the cross-appeal, as it is relevant to the costs issue.
2. The respondents had contended in the court below that the Beth Din lacked jurisdiction to hear the dispute because of an apprehension of bias. The primary judge found that there were strong grounds for a finding of apprehended bias, but that the claim was not justiciable. The respondents in their cross-appeal contended that the issue was justiciable and sought orders that the appellants be restrained from taking any step to adjudicate upon or arbitrate the alleged commercial dispute.
3. As the argument proceeded on the appeal, the respondents essentially confined the relief sought to order 23 of their further amended summons at first instance, which provided as follows: "A declaration that the first to fourth [appellants] in their capacity as representatives of the Sydney Beth Din have no jurisdiction to conduct any arbitration proceedings under either the Commercial Arbitration Act 2010 (NSW) or the International Arbitration Act 1974 (Cth) or the UNCITRAL Model Law on International Commercial Arbitration (as contained in Schedule 2 of the International Arbitration Act 1974 (Cth)) and that any award issued by the Sydney Beth Din in respect of the Dispute under either Act is of no force or effect." (Red 20)
4. The primary judge does not appear to have decided the jurisdiction issue. The respondents accepted that if the Court upheld the convictions for contempt, it would not be necessary to grant, in addition, the relief sought in their cross-appeal. However, it is necessary to say something about the cross-appeal, briefly, at least to the extent that it concerned the issue of apprehended bias, as the appellants argued that the respondents should not have any costs for that aspect of the proceedings.
5. The respondents accepted, for the purpose of the proceedings in this Court, the law as stated in Agricultural Societies Council of NSW Ltd v Christie (2016) 340 ALR 560; [2016] NSWCA 331, especially at [54], where Meagher JA (Ward and Leeming JJA agreeing) stated: "The extent to which the principles of natural justice apply to proceedings of a private tribunal depends on the construction of the consensual or other arrangements which empower the tribunal to decide any dispute or matter arising between the parties. It is sufficient in this respect to refer to the decision in Dickason v Edwards … (1910) 10 CLR 243 at 250-1 … (Griffith CJ), CLR 255-6 (O'Connor J) and CLR 262-3 (Isaacs J)."
6. Meagher JA's further observations, at [55]-[56], are also relevant: "In interpreting the rules of a friendly society that gave authority to such a tribunal to deal with a question of expulsion for misconduct, O'Connor J observed in Dickason (at 255) that 'there is always to be read into [the rules] the underlying condition that the proceedings shall be carried on in accordance with the fundamental principles of common justice. It is upon a party who wishes to shut out the implication of that basic condition to show that the rules expressly or by necessary implication negative the implication of its existence'. This statement was applied by Dixon J in Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601 at 631 … The same general principle applies when determining the extent to which the rules of natural justice apply to a tribunal or other decision-maker constituted by statute. Those rules must, where necessary, give way to any statutory requirements governing the performance of the tribunal's functions, and cannot be invoked to frustrate the intended operation of the statute: see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 89 …"
7. The respondents submitted that the effect of Agricultural Societies Council of NSW v Christie is that where a private body imposes penalties by way of a disciplinary committee on a person who is a member or otherwise, then, absent the person having any underlying contractual or proprietary interest, the decision of the disciplinary committee is not justiciable, including in respect of issues of procedural fairness.
8. The respondents submitted, however, that this case was different from Agricultural Societies Council of NSW v Christie in that, although Mr Barukh did not have a contractual or proprietary interest to protect, the Beth Din asserted that it has a binding jurisdiction under civil law, as stated in the email of 31 January 2017 set out above at [34]. The respondents submitted that, therefore, the rules of procedural fairness applied.
9. This submission related solely to the arbitration agreement signed by Mr Kuzecki, which was the process the appellants proposed for the resolution of the alleged commercial dispute. It did not relate to the dispute resolution clause in the agreement between Live Group and SalesPort. The respondents accepted that any such arbitration, if it were permitted to proceed, would result in an enforceable arbitral award, subject to any civil proceedings being brought resisting the arbitral process itself as having been procured by duress or resisting the enforcement of the award under the International Arbitration Act.
10. This raised the question whether the apprehended bias issue, assuming it was justiciable, was premature in circumstances where the arbitration agreement had yet to be signed by Mr Barukh. The respondents submitted that it was not premature when taken in the context of the sanctions that were threatened, which sought to coerce Mr Barukh to submit to the jurisdiction of the Beth Din and, having done so, sign the arbitration agreement.
11. The appellants submitted that whilst an arbitration agreement was ordinarily a part of the processes of the Beth Din, that was not necessarily so. They also asserted that the unchallenged evidence was that if someone appeared before a Beth Din and then refused to enter into an arbitration agreement, "that would have been the end of it".
12. The respondents denied that this was the unchallenged evidence and referred to the following evidence of Rabbi Gutnick in response to questions from his Honour: "HIS HONOUR Q. Assume that Mr Barukh continued to refuse to sign an arbitration agreement? A. Well that is the end of it. Q. Does that mean that your jurisdiction would no longer exist? A. Our jurisdiction in theory exists but we have no mechanism other than urging Mr Barukh to do the right thing in accordance with Jewish law. Q. Assuming he doesn't sign ever, you never proceed with the din torah, is that correct? A. Depends, if - Q. When you say 'depends', first of all, if he doesn't sign the arbitration agreement you still may or may not imposition sanctions? A. Correct. Q. You may or may not however proceed with the Din Torah if he doesn't sign the arbitration agreement, he may choose not to attend, but providing you give him fair warning, you have a discretion, don't you, to proceed in his absence. A. Well not really. Unless there is in some Beth Din it is a very complicated matter of Jewish law. As a matter of principle a Beth Din is not allowed to hear a case unless both parties are present, that is the general rule. In many jurisdictions they can advance, or let it be known, so to speak, to the populace of the community but they will rule under certain circumstances hear cases without one of the witnesses and because - one of the parties, and because the community is aware of that I can then hear a matter in absentia, a matter of Jewish law. Our Beth Din would never do a matter in absentia. Q. So in other words if he refuses to sign an arbitration agreement that is the end of it. A. If he refuses to attend there is nothing we can do. Q. Well and that is the end of it- A. Sure. Q. Excuse me. That is the end of it from your point of view except the discretion to impose religious sanctions? A. Yes."
13. The appellants accepted that had Mr Barukh signed the arbitration agreement, and had done so under duress, he could apply to have the arbitration stayed and the agreement set aside: see Rinehart v Rinehart (No 3) (2016) 337 ALR 174; [2016] FCA 539; Hancock Prospecting Pty Ltd v Rinehart (2017) 350 ALR 658; [2017] FCAFC 170. However, as no agreement had been signed, they submitted that that question did not arise.
14. The appellants also submitted that there was no utility in making the declaration sought in order 23 of the further amended summons, if it was based on the allegation of apprehended bias, as the appellants had agreed that, in the event Mr Barukh submitted to the jurisdiction of the Beth Din but requested another Beth Din constituted by different Rabbis than the appellants to hear the matter, they would not have acted as the arbitrators.
15. If this issue was in contest, we are inclined to the view that it was justiciable. This is not a case where the respondents were contesting or even asserting that the religious beliefs and practices of the Beth Din were justiciable. The respondents' claim was that the appellants were seeking to force Mr Barukh, under the threat of sanctions that affected the practice of his religious faith, to submit to the jurisdiction of a religious body, for the purpose of having him enter into an arbitration agreement, which would then be binding under civil law.
16. Had Mr Barukh acceded to the Beth Din summons, he could have sought to have the agreement set aside on the basis of duress or resisted the enforcement of any resulting arbitral award. Notwithstanding the availability of such remedies, and although Mr Barukh has resisted the pressure he was under, we do not think that the grant of relief would have been premature. Mr Barukh was squarely faced with the threat of sanctions if he did not submit to the Beth Din summons. Rabbi Gutnick gave evidence that if, having done so, Mr Barukh then refused to sign the arbitration agreement, he would still be faced with the possibility of sanctions being imposed.
17. Accordingly, although it is not necessary for this question to be decided, we are of the opinion that his Honour erred in finding that this particular issue, notwithstanding its religious context, was not justiciable.

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

Primary judge's reasons

1. The primary judge held, at [175], that the appellants should pay the respondents' costs on an ordinary basis up to 14 July 2017, the date on which the allegations of contempt were introduced into the proceedings, and, thereafter, on an indemnity basis, notwithstanding that the respondents only succeeded on two charges of contempt and did not succeed on the apprehended bias issue. In making this finding, his Honour observed that the charges made out were "two serious contempt charges".
2. His Honour's reasons for the making of the costs orders are found at [173]-[174]. His Honour stated, at [173], that he was satisfied that the commencement of the proceedings was both necessary and reasonable, as the respondents were obliged to commence the proceedings in order to stop the appellants from proceeding with the threatened religious sanctions. His Honour noted that the appellants did not apply for summary dismissal of the proceedings, or contend that they were unarguable.
3. Further, his Honour, at [174], considered that the appellants' conduct was "entirely out of order", "contrary to the very principles of Halachic law the Rabbis are bound to uphold" and "totally unreasonable".

Parties' submissions

1. The appellants submitted that the costs order made by the primary judge was unreasonable or plainly unjust, such that there was a failure to properly exercise the Court's discretion as to costs. They submitted that his Honour mistook a material fact, by proceeding on the basis that their conduct was "entirely out of order", contrary to the principles of Halachic law and "totally unreasonable".
2. They also submitted that his Honour erred in failing to give any weight to two material circumstances: first, the fact that the apprehended bias issue, in respect of which the respondents did not succeed, occupied the majority of the hearing; and secondly, the fact that what was then intended to be the final hearing listed for 23 June 2017 was adjourned because the respondents sought to expand the proceedings to include allegations of contempt.
3. Further, they submitted that his Honour had regard to the following extraneous and irrelevant matters: that they had not applied for summary dismissal of the proceedings; that they did not contend that the proceedings were unarguable; and that their conduct was "entirely out of order", contrary to the principles of Halachic law and "totally unreasonable", in circumstances where his Honour found against the respondents on the apprehended bias issue.
4. The appellants also submitted that the primary judge erred in failing to provide reasons for awarding costs on an indemnity basis from 14 July 2017 onwards. They submitted that, in any event, there was no basis to do so. They also submitted that the award had the perverse outcome that they were required to pay indemnity costs in respect of a discrete issue, namely, the apprehended bias issue, that took up the majority of the hearing and in respect of which they succeeded.
5. The appellants contended that the respondents should pay their costs up to 14 July 2017, and, thereafter, each party should bear their own costs. They submitted that such an order would properly reflect the fact that the respondents were unsuccessful on all issues other than two charges of contempt, including all the issues raised in the proceedings as originally commenced and continued until 14 July 2017, and the fact that the apprehended bias issue occupied a majority of the hearing time.
6. The respondents submitted that the primary judge did not err in the exercise of his discretion. They submitted that the award of indemnity costs was part of the "tangible penalty" that the primary judge considered was warranted. They submitted that once viewed as such, the appellants' other difficulties with the primary judge's exercise of his discretion fell away.

Consideration

1. The respondents' submissions can be dealt with immediately. An award of costs does not form part of the penalty that a court imposes on a party who is unsuccessful in legal proceedings. Costs are compensatory, not punitive. The principle is so well established as not to require a detailed review of the authorities. It is sufficient to refer to the following observations of McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11: "Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation." (footnote omitted)
2. In our opinion, to the extent that his Honour considered that the costs were part of the penalty to be imposed, we consider that he erred in doing so. It may be that what his Honour had in mind was that the amount of the costs should be moderated because the appellants would have a significant financial penalty to bear. If that was what his Honour meant, then we do not consider that was an erroneous basis upon which to award costs. However, as we explain below, we consider that his Honour erred in the award of indemnity costs in any event.
3. Although, pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 42.1, the usual order for costs is that costs follow the event, a court may, pursuant to the Civil Procedure Act 2005 (NSW), s 98, exercise its discretion to make some different order, including an order which reflects the success of a party on a particular issue: see Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] and the cases cited therein. In particular, the following statement is relevant to the present matter: "• Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported). • In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal."
4. These principles have been consistently applied: see Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 at [7]; Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 at [173]; and Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266 at [10]-[14].
5. In the present case, the primary judge held that the court did not have jurisdiction to intervene in the affairs of the Beth Din. As we have explained above, we consider that the better answer is that the issue of procedural fairness raised by the respondents was justiciable. Accordingly, we would not interfere with the costs order made by his Honour in respect of the period up until 14 July 2017.
6. However, we do not see what basis there was for the award of indemnity costs thereafter. Save perhaps for one matter, his Honour did not find that the appellants had protracted the proceedings or otherwise acted improperly or engaged in any misconduct in the course of the proceedings such as to impact on the costs incurred by the respondents. We have already indicated that if his Honour ordered indemnity costs by way of a punitive measure, then he erred in so doing. We are also of the opinion that the fact that the appellants did not apply for summary judgment was irrelevant to the award of costs. The appellants had been charged with a serious matter with serious penal consequences. They were entitled to defend those proceedings to the full.
7. The one matter that may arguably be relevant to the award of costs was that his Honour did not accept Rabbi Gutnick's evidence in critical respects. However, when his evidence is read in its entirety, we consider that it discloses an obstinate refusal to understand the role of the Beth Din and its relationship to the civil law. This was apparent from the manner in which the appellants gradually moderated their position once Mr Barukh had commenced the subject proceedings. In any event, we do not consider that the proceedings were unduly prolonged by the appellants in any way that would warrant an order for indemnity costs against them.

Costs of the appeal

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

Orders

1. We would make the following orders: 1. Appeal allowed in part. 2. Set aside orders 1, 2 and 3 of 23 April 2018 of the Supreme Court and, in lieu thereof, order that: 1. the first, second and third appellants pay to the Registrar of the Court a fine for contempt of court in the sum of $7,500; 2. the fourth appellant pay to the Registrar of the Court a fine for contempt of court in the sum of $2,500; and 3. the appellants pay the respondents' costs of the proceedings below on an ordinary basis. 1. The appellants to pay 75 per cent of the respondents' costs of the appeal.
2. McCOLL JA: I have had the benefit of reading the reasons in draft of Chief Justice Bathurst and President Beazley. These reasons assume familiarity with the facts as there set out which I repeat, or supplement, only to the extent necessary for context.
3. I agree with their Honours' resolution of issue 2, namely that the primary judge's findings of contempt were those that were charged.
4. I do not, with respect, agree with their Honours' conclusion that the appellants' conduct in saying they would impose the religious sanctions referred to in the 29 December 2016 email and 28 February 2017 letter constituted criminal contempt of court in imposing improper pressure on the second respondent, who describes himself as an Orthodox Jew, to deter him from exercising his right, or the first respondent corporation's right, to access a secular court in order to have such a court determine the alleged commercial dispute between the first respondent and SalesPort LLC. In particular, in my view, the respondents did not establish that case beyond reasonable doubt. [1]
5. Rather, in my view, the evidence established that the appellants, who are judges of the Sydney Beth Din, a religious court that administers Halacha, or Jewish law, were seeking to ensure the second respondent's attendance at the Beth Din. Accordingly, neither communication constituted improper pressure which had "ha[d] as a matter of practical reality, a tendency to interfere with the due course of justice", [2] such as to constitute criminal contempt of court.

Legal framework

1. The criminal contempt charges against the appellants were based on an allegation of interference with the administration of justice as a continuing process. Such cases "rest on the need to protect the courts and the whole administration of justice from conduct which seeks to undermine the authority of the courts and their capacity to function". [3] In order to establish criminal contempt it is necessary for the court to be satisfied that "the acts of the alleged contemnor were intentional and were calculated to interfere with the course of justice". [4] This class of contempt is described as being a "wider or more general kind of contempt of court". [5] It looks to the effect the impugned conduct "has generally in relation to the course of justice as administered in a particular court". [6]
2. These issues fall for determination in the context, as the primary judge recognised, of "the judicially recognised right of unimpeded access to the courts" afforded to all citizens. [7]
3. However, they also fall for determination in circumstances where "the law recognizes a complete freedom of conscience in matters of religion" [8] and it is acknowledged that "[f]reedom of religion, the paradigm freedom of conscience, is of the essence of a free society." [9] Accordingly, there is "an area within which a person subject to the law is free to believe and to act in accordance with his belief without legal restraint." [10] However, "[t]he freedom to act in accordance with one's religious beliefs is not as inviolate as the freedom to believe, for general laws to preserve and protect society are not defeated by a plea of religious obligation to breach them". [11]
4. As the primary judge recognised, "religious freedoms are vital and important in a democracy" but "must be balanced against every citizen's right to approach a court or to insist upon a secular court resolving any alleged commercial dispute between citizens, or for that matter between a citizen and foreign national". [12] As will be apparent from the juxtaposition of the propositions in the preceding paragraph, the balancing exercise to which his Honour referred may often be a delicate one.
5. As Gibbs J said in Grant, "[n]o one is compelled to adhere to, or to abjure, any particular religious opinions. Any member of a church is perfectly free to leave that church and join another which professes different beliefs and has a different mode of government". [13]
6. Furthermore, it should be recognised as Murphy J explained in Grant that, "[j]udicial determination of religious doctrine and practice is as much state interference in religious affairs as legislative and administrative measures are". [14] That does not mean that churches (using that expression broadly) are immune from judicial scrutiny, but, generally "only marginal inquiry into church government is permissible". [15] In particular, as recognised in a body of United States jurisprudence, "the decisions of the governing body of the church should be accepted on issues of practice and procedure of ecclesiastical government, as well as issues of doctrine" and "controversial questions of doctrine (or departure from doctrine) or practice or procedure in ecclesiastical government … however forceful … arguments [on these issues] appear to be … are outside the judicial sphere. [16] As Kirby P recognised in Uniting Church in Australia Property Trust (NSW) v Vincent, judges' "competence to determine disputed issues of religious belief is highly doubtful." [17]
7. Simon Brown J went even further in R v Chief Rabbi; ex parte Wachmann, [18] ruling that "the court would never be prepared to rule on questions of Jewish law."
8. In Canterbury Municipal Council v Moslem Alawy Society Ltd, McHugh JA said that in determining a question of statutory construction of the local council's planning scheme ordinance, where the issue was whether a building used for prayer and the reading of the Koran by members of a religious sect and to which the public had no access was a "place of public worship", the court should bear in mind that the background to the proceedings was the question of freedom to exercise religious beliefs. [19] Thus, in his Honour's view, if the ordinance was "capable of a rational construction which permits persons to exercise their religion at the place where they wish to do so … a court should prefer that construction to one which will prevent them from doing so." [20]
9. Such a consideration is clearly also apposite when seeking to characterise the conduct of an ecclesiastical church whose only powers to ensure religious observance by its members are, as Rabbi Gutnick acknowledged, "to [urge the member] to do the right thing in accordance with Jewish law". That law included the fundamental tenet that all Jews must comply with the summons of a Beth Din.
10. Finally, in this context, I would observe that the sanctions the appellants said they would impose were in the nature of excommunication, which is a form of religious censure common to many religious communities.

Factual framework

1. In 2015, Live Group Pty Ltd, of which the second respondent is a director, entered into a commercial agreement with SalesPort LLC, which included a dispute resolution clause requiring that disputes "shall be brought to the Chief Dayan of Sydney AUS. (sic) Rabbi Gutnick ... and his decision will be final and acceptable on both sides." The agreement was negotiated and signed by the second respondent on behalf of Live Group Pty Ltd, and by Jesse (or Yosef) Kuzecki on behalf of SalesPort LLC. In July 2016, Mr Barukh terminated the agreement. Mr Kuzecki brought the resulting dispute to the Sydney Beth Din. On 14 December 2016, the Sydney Beth Din served a "First Summons to a Din Torah". Mr Barukh was one of the defendants.
2. In response, on 20 December 2016, Mr Barukh's solicitor told the Beth Din that Mr Barukh had "no intention" of appearing at the Din Torah, and that he was "refusing to do so", and asked the Beth Din to withdraw its summons. The letter also stated that, if Mr Kuzecki believed that he had a proper claim, he could bring proceedings in a civil court. It is also noteworthy that the letter stated: "From our understanding, the activity of Dinei Torah is to help solve disputes by means of arbitration and adjustment. As well as calling upon Jewish Law and ethical teaching in making its decisions, the Beth Din is empowered [to] help to contain disputes involving members of the Jewish Community with the intention of avoiding recourse to the civil courts." (Emphasis added)
3. The 29 December 2016 email the subject of charge 2 referred to Mr Barukh's "responsibility in accordance with Jewish Law", and stated that unless he acquiesced "to the Beth Din process in accordance with Jewish Law", certain "halachic sanctions" would apply. At this stage, there was no suggestion Mr Barukh intended to commence any legal proceedings.
4. That suggestion was first made on 27 January 2017, a suggestion made good on 9 February 2017 when the respondents commenced these proceedings, seeking, in addition to final orders, interlocutory orders restraining the Beth Din from imposing the sanctions. Thus, far from the 29 December 2016 email having any effect on deterring the respondents from exercising their civil rights, it appears to have prompted them to do so, or at least, seek to do so.
5. After negotiations between the parties, on 15 February 2017 the appellants gave undertakings that they would not impose any of the threatened sanctions without first giving 21 days' notice.
6. On 28 February 2017 the appellants' solicitors sent the letter the subject of charge 6 which gave the required notice, in accordance with the appellants' undertakings, that the Beth Din would impose the sanctions identified in the 29 December email unless Mr Barukh submitted to the jurisdiction of the Beth Din, and also stated that if Mr Barukh wished to apply for an interlocutory injunction in relation to that issue then the appellants would "cooperate with [the respondents] to obtain an early hearing by the Supreme Court of that application."
7. At this stage of course, proceedings had been commenced, and, in my view, while the appellants were exhorting Mr Barukh to resolve the dispute Mr Kuzecki had notified in accordance with the dispute resolution clause, they were clearly accepting the jurisdiction of the Supreme Court to resolve the issue of their entitlement to do so.
8. Once again, as history records, the respondents were undeterred and persisted with their civil proceedings. They proposed an expedited hearing with which course the appellants agreed. It was not until June 2017, when the matter came on for hearing that at the primary judge's apparent suggestion, the respondents alleged the appellants were guilty of contempt of court. An amended summons to this effect was filed in July 2017.
9. As the 28 February 2017 letter effectively repeated the 29 December 2016 email, it is worth repeating that the latter communication said: "'The Beth Din is a court of law whose jurisdiction applies on all members of the Jewish Faith and in particular those who consider themselves observant as does your client [Mr Barukh] ... Unless by 5pm January 26 2017 the Beth Din hears from you on behalf of your client [Mr Barukh] that he has recanted and that he acquiesces to the Beth Din process in accordance with Jewish Law, (which is indeed compatible with secular law), the following halachic sanctions will apply and the Synagogue/s where he prays will be informed accordingly. 1. He will not be counted to a minyan. 2. He will not be able to receive an aliyah to the Torah. 3. He will not be offered any honour in the Synagogue. There are further sanctions that will be applied should your client maintain his recalcitrance ... We advise and urge your client [Mr Barukh] not to underestimate the resolve of the Beth Din in ensuring Jewish law is adhered to especially with those who profess to adhere to the tenets of Orthodoxy." (Emphasis added)

Consideration: charge 2

1. The first point to make about charge 2, as I have already mentioned, is that at the stage the 29 December email was sent, Mr Barukh had not given any indication he had in mind seeking relief in a civil court. Rather, all he had done was state, rather obdurately, that he had no intention of appearing at the Beth Din. The appellants' response, in those circumstances, in my view, can only be understood as an exhortation to comply with Halachic law. It was made in circumstances where the appellants must have known that the Mr Barukh was, and in any event he professed himself to be, an avowedly observant and "life-long, practicing, orthodox Jew".
2. Secondly, the first respondent had signed a dispute resolution clause which, in my view, in agreeing that any dispute "shall be brought to the Chief Dayan of Sydney AUS. (sic) Rabbi Gutnick" could only be understood, objectively, as recognition of the authority of the Beth Din to determine controversies under the agreement with SalesPort LLC. As appears below, at the time the agreement was made, Rabbi Gutnick was, and had for many years been, a judge of the Sydney Beth Din.
3. As the respondents accepted on appeal, the dispute resolution clause was an arbitration agreement governed by the International Arbitration Act 1974 (Cth), that is to say, "an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not." [21]
4. Thirdly, the sanctions the Rabbis advised would be imposed were, as I have said, a form of excommunication, not dissimilar, indeed no doubt comparable, to religious censures imposed by other faiths. Had they become public, in my view, many, if not most, members of the community would understand them in that context. In particular, in my view, objectively, they would be regarded as urging the appellants to submit their dispute to the Beth Din for at least the two reasons to which I have already referred: abiding by the Halachic law and secondly, observing the dispute resolution clause.
5. Fourthly, I cannot, with respect, accept that the tone of the 29 December 2016 email was 'belligerent'. It was certainly firm, but that is what might be expected of a communication from a court to a recalcitrant litigant seeking to dispute its prima facie authority, whether under Halachic law or the dispute resolution clause. But even disputes expressed in strong language do not necessarily lead to the conclusion there has been a contempt of court. [22]
6. Fifthly, Mr Barukh gave evidence that "Australian Corporations Law governs the conduct and legal obligations of Live Group [and that] Live Group cannot be held responsible or liable for any deemed halachic obligation as the Beth Din and the Defendants are seeking to do, by summonsing myself and my mother, the only Directors of Live Group, as well as my sister who lives in Switzerland and has never had any involvement in Live Group or its associated entities".
7. In response, Rabbi Gutnick, who was the senior Dayan (judge) of the Sydney Beth Din, deposed that: "According to Halacha, a person cannot hide behind a corporate veil or other legal entity to avoid their own personal responsibility in a business dealing. For this reason, Jewish law does not accept or recognise a corporate veil the same way that secular law does." [23]
8. Rabbi Gutnick had been a Rabbi since 1981 and a Dayan since 1984. He became a Dayan on the Sydney Beth Din in 1993 and the Senior Dayan in 2012. He gave evidence that he and Rabbi Ulman, had international recognition as respected Dayanim and authorities on Jewish Law. This meant that persons "who receive their advice or decisions have confidence that they will be accepted in any other Beth Din and particularly in the Land of Israel".
9. It does not appear that either the second respondent or Rabbi Gutnick was cross-examined about their respective assertions. No doubt, this was a forensic decision made by the respective counsel, recognising it was an area where views might differ.
10. In my view, this court ought not to reject Rabbi Gutnick's evidence about the way Halachic law dealt with corporations. This is, not least because, as I have discussed, decisions of the governing body of the church should be accepted on issues of practice and procedure of ecclesiastical government, as well as issues of doctrine.
11. Nor, in particular, should the court prefer Mr Barukh's evidence on this point. First, on its face, he was merely making an assertion about the effect of the Corporations Law, rather than an assertion of a tenet of Halachic law. Secondly, if it can be regarded as being of the latter nature, the mere fact that one member of the Jewish religion holds a belief contrary to that of the leading judges of the Beth Din administering the Halacha law as to its fundamental tenets, cannot be accepted as binding the appellants, let alone this court. [24]
12. Accordingly, in my view, the Beth Din's assertion of jurisdiction over those who stood behind Live Group was consistent with Halachic law.
13. Even if that were not the case, and the appellants were labouring under a mistaken, albeit honestly held, view as to the effect of Halachic law, that could not, in my view, be the determining factor in the question whether their conduct was such as a matter of practical reality to have a tendency to interfere with the due course of justice.
14. It should be recalled that these were criminal proceedings in which "[i]f a statement is reasonably capable of more than one meaning and one of those meanings does not involve contempt, a charge based upon that statement is, … not made out.". [25]
15. In my view, when the evidence is assessed objectively, the appellants were urging the second respondent to comply with Halachic law and resolve the dispute in the Beth Din. There was nothing in the 29 December 2016 email which suggested he should not have recourse to a civil court.
16. In my view, the primary judge erred in finding that the email of 29 December 2016 constituted an interference with the administration of justice generally.

Consideration: charge 6

1. I also cannot accept that the letter of 28 February 2017 could, as a matter of practical reality, have a tendency to interfere with the due course of justice. It was written in the course of legal proceedings. It gave notice of a course of action the appellants would invoke unless restrained by an interlocutory injunction. The 21 day notice it gave was a period which had been agreed between the parties and was part of the undertaking the appellants gave to the court on 15 February 2017.
2. There was no suggestion that the appellants had breached their undertaking. Rather, they had clearly complied with it. It would be a curious outcome that they should be found guilty of contempt of court, in circumstances where they had given notice in accordance with a court undertaking.
3. It is even more curious, in my view, that a letter which complies with a court undertaking could be judged to impose improper pressure, particularly in circumstances where the letter of 28 February 2017 made it clear that the appellants would abide by the order of the court as to whether or not they could impose the sanctions. In other words, the appellants were clearly deferring to the court's authority in this respect.
4. Although the parties tended to refer to the appellants' letter of 31 January 2017, I do not understand that letter to have been the subject of charge 6. The only matter that should be considered for the purpose of determining charge 6 is whether the letter of 28 February 2017 constituted contempt of court.
5. If it were relevant, then there was evidence that "[a] fundamental tenet of Halacha is that all Jews must comply with the summons of a Beth Din" and that "compliance with this rule is a religious obligation, and non-compliance has a recognised religious and communal significance." In addition, there was evidence that it is a "fundamental Halachic rule that 'all Jews must seek resolution of their conflicts within the Halachic system rather than in the secular courts'. No person who professes to be of the Jewish faith can fail to comply with this obligation and still be true to the faith."
6. Consistent with those tenets, the appellants were, in my view, entitled to express the view that a person who appeared to disagree with these tenets was no longer an adherent to the Jewish religion. Again, this court should not intrude upon the rabbinical view of the Halacha. Further, and once again, the mere fact that Mr Barukh may have expressed an alternative view cannot, even if relevant, be dispositive.

The cross-appeal

1. The background to the cross-appeal is set out in the joint judgment. Again, I shall not repeat the facts save to the extent necessary.
2. I would accept the appellants' submissions that it is premature to resolve the issue of the justiciability of the issue whether the Beth Din lacked jurisdiction to hear the dispute because of an apprehension of bias.
3. As the appellants submitted, the unchallenged evidence was that if someone appeared before a Beth Din and then refused to enter into such an arbitration agreement, then "[t]hat would be the end of it." Secondly, it was not correct to submit, as did the appellants, that an arbitration agreement promulgated by the Beth Din would necessarily have precluded access to a civil court. The only evidence that related to the content of the Beth Din's arbitration agreements was that their purpose was to ensure that any award made by the Beth Din would be enforceable in a civil court. Thirdly, again, the appellants' evidence was that sanctions against instituting or maintaining proceedings in a civil court were never a part of the processes of the Beth Din.
4. Further, the appellants' evidence was that they had acted in relation to Mr Barukh "on their shared religious beliefs". They did not purport to assert "'jurisdiction' to conduct arbitral proceedings", at least not until an arbitration agreement recognised according to the laws of Australia had been executed.
5. Accordingly, there was no real controversy about the Beth Din's "jurisdiction" to conduct arbitral proceedings, to which the declarations the respondents sought could go. [26] The issues the respondents sought to agitate by their cross-appeal were hypothetical. Declaratory relief will not be granted in such circumstances. [27]
6. The cross-appeal should be dismissed with costs.

The costs issue

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

Orders

1. I would make the following orders: 1. Appeal allowed. 2. Set aside the declarations and orders 1 to 3 made on 20 December 2017, and orders 1 and 2 made on 23 April 2018. 3. Dismiss the Further Amended Summons and the Statement of Charge in the proceedings below. 4. Order the respondents to pay the appellants' costs of the proceedings below. 5. Order the respondents to pay the appellants' costs of the appeal.

Endnotes

1. Witham v Holloway (1995) 183 CLR 525 at 534; [1995] HCA 3 per Brennan, Deane, Toohey, and Gaudron JJ.
2. John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 370; [1955] HCA 12 per Dixon CJ, Fullagar J, Kitto J and Taylor J.
3. The Prothonotary v Collins (1985) 2 NSWLR 549 (Collins) at 567 per McHugh JA; see primary judgment at [246].
4. Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322 at [38] per Brereton J; cited with approval in Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 at [125], [163] per Ward CJ in Eq.
5. Commercial Bank of Australia v Preston [1981] 2 NSWLR 554 at 565 per Hunt J.
6. See Collins at 556 per Mahoney JA; see also James v Robinson (1963) 109 CLR 593 at 602; [1963] HCA 32 per Kitto, Taylor, Menzies and Owen JJ.
7. Live Group Pty Ltd and Anor v Rabbi Ulman and Ors [2017] NSWSC 1759 at [88].
8. Attorney-General for the State of New South Wales (on the Relation of MacLeod) v Grant (1976) 135 CLR 587 at 600; [1976] HCA 38 (Grant) per Gibbs J (as his Honour then was).
9. Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 120 at 130; [1983] HCA 40 per Mason ACJ and Brennan J.
10. Ibid.
11. Ibid at 135 - 136.
12. Live Group Pty Ltd & Anor v Rabbi Ulman and Ors [2017] NSWSC 1759 at [269].
13. At 600.
14. Ibid at 612 per Murphy J
15. Ibid at 613.
16. Ibid at 613, 614; the primary judge acknowledged in Sturt v Bishop of Newcastle [2012] NSWSC 400 at [46] "that courts have routinely not interfered in the internal workings of voluntary associations especially religious organisations".
17. (Unreported, Court of Appeal (NSW), Kirby P, Clarke JA and Sheller JA, 19 August 1994) at 10.
18. [1992] 1 WLR 1036 at 1042.
19. (1985) 1 NSWLR 525 at 543 - 544 (Priestley JA agreeing); appeal dismissed: Canterbury Municipal Council v Moslem Alawy Society Ltd (1987) 162 CLR 145; [1987] HCA 8.
20. Ibid at 544.
21. International Arbitration Act, Sch 2 (UNCITRAL Model Law on International Commercial Arbitration (As adopted by the United Nations Commission on International Trade Law on 21 June 1985, and as amended by the United Nations Commission on International Trade Law on 7 July 2006) as defined in Art 7 of the Model Law. The Model law has the force of law in Australia: International Arbitration Act, s 16.
22. See Warringah Shire Council v Manly Daily Pty Ltd (Unreported, Court of Appeal (NSW), Hope, Glass and Samuels JJA, 27 August 1985), discussed by Mason P in Harkianakis v Skalkos (1997) 42 NSWLR 22 (Harkianakis) at 38ff, esp at 40.
23. It was presumably for this reason that the Beth Din issued the summons to attend the Beth Din to all the directors of Live Group, that is to say, Mr Barukh, as well as his mother. It appears that Mr Barukh's sister was named in the summons because Mr Kuzecki asserted that she and Mr Barukh were joint owners of Blessed Corporation which owned 95% of the shares in Live Group. There was no evidence it was ever served on her. Neither Mrs Barukh, the second respondent's mother, nor his sister, Elana Barukh was a party to the proceedings.
24. See generally in relation to charitable trusts over property held for church purposes: Attorney-General; Ex rel Elisha v Holy Apostolic & Catholic Church (1989) 37 NSWLR 293 at 311ff per Young J (as his Honour then was).
25. Harkianakis at 40 per Mason P, referring to Hope JA in Warringah Shire Council v Manly Daily Pty Ltd at 10.
26. Cf Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437; [1972] HCA 61 per Gibbs J.
27. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582; [1992] HCA 10 per Mason CJ, Dawson J, Toohey J and Gaudron J.
28. Live Group Pty Ltd & Anor v Rabbi Ulman and Ors [2018] NSWSC 393 at [175].

Amendments 21 December 2018 - minor typographical corrections made 20 December 2019 - Quoted paragraph [271] at [66] - final sentence, added the word "not" before "the appropriate place" as per amendment in Live Group Pty Ltd and Anor v Rabbi Ulman and Ors [2017] NSWSC 1759. 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: 20 December 2019