Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

5361/02 - YESHIVA PROPERTIES NO 1 PTY LTD v LUBAVITCH MAZAL PTY LTD JUDGMENT 1 HIS HONOUR: On 8 July 2003 I gave reasons for judgment in an acrimonious dispute between the plaintiffs and the defendant which is recorded as [2003] NSWSC 615. On 23 July 2003, the defendant filed a notice of motion seeking declarations that the plaintiffs and the respondent Pinchus Feldman were in contempt of court for sequestration and other punishment. 2 The motion came on before me on 30 July 2003 for the purpose of seeking interim orders to prevent continuance of what the defendant considered to be serious continuing contempts of court until the final hearing of the motion. 3 I heard Mr B R McClintock SC and Mr I D Martindale for the defendant applicant and Mr P L G Brereton SC and Mr S J Burchett for the plaintiffs and respondent. At the end of the hearing I recorded some thoughts, asked for further submissions and made orders for the purpose of ensuring that the final hearing took place as soon as possible. These orders included an order that the motion be heard on a final basis on 25 and 26 August next. 4 I made no interim orders after the hearing on 30 July 2003, but I believe that what I said was sufficient to hold the fort until the final hearing seeing it was only a short time. There is now less than a week before the date fixed for the final hearing and it is very tempting merely to say that because of the imminence of that hearing I should do no more than merely decline to make interim orders and reserve costs. 5 However, the parties argued the matter before me on 30 July and have since spent considerable thought in providing written submissions. Accordingly, I consider it appropriate to give some reasons. I will, however, not make any interim orders, both for the reasons I am about to give reinforced by the shortness of time until the final hearing. 6 If I can summarise the allegations made by the applicant, they are first that after my decision and as punishment for the applicant pursuing its remedies before this Court, the plaintiffs and the respondent had caused the controller of the defendant to be excommunicated within the Jewish faith. Secondly, that after my decision there was a deliberate press campaign to misrepresent my decision, in particular to misrepresent what had been decided to be the obligations vis a vis the parties with respect to proceedings in the Rabbinical Courts. 7 It was conceded from the bar table that on 15 July 2003, the Rabbinical Court in Tel Aviv had issued an order of excommunication of the controller of the defendant after prompting by the plaintiffs. 8 The first problem for me was whether it is appropriate to grant an interim injunction with respect to an alleged contempt of court. 9 This problem does not often come before the court. It arises in the present case because of a combination of factors. First, the excommunication is very emotionally and spiritually concerning to the controller of the defendant. Secondly, the defendant has no wish at all to see the respondent put in gaol. As it would appear that the plaintiffs and the respondent are without funds, the only way apart from injunction of policing the court's order is imprisonment. 10 I did note that if a contempt matter is brought to the attention of the court and the court considers it is sufficiently serious to award imprisonment, the feelings of the moving party may well be irrelevant. However, at this interlocutory stage, the defendant seeks to get the benefit of both worlds, to obtain an injunction to remove the excommunication, but not imprison the respondent. 11 The written submissions of the applicant indicate that there have been a number of reported decisions of interlocutory injunctions being granted to restrain contempts of court: A-G v Times Newspapers Ltd [1974] AC 273; Acrow (Automation) Ltd v Rex Chainbelt Inc [1971] 1 WLR 1676; Waterhouse v Australian Broadcasting Corporation (1986) 5 NSWLR 716 and see Arlidge, Eady and Smith on Contempt 2nd ed (Sweet and Maxwell, London, 1999) 14-104. To this should be added Advance (NSW) Insurance Agencies Pty Ltd v Matthews (1989) 166 CLR 606, where an order I had made at first instance restraining a possible contempt of court pending the hearing of the proceedings was not disturbed. 12 Mr Brereton submitted that the Chainbelt case was not a case of interlocutory injunction at all. This may be right. However it does not seem to me that the material put forward by Mr Brereton in general negates the proposition that in a proper case the Court may grant an interlocutory injunction to restrain threatened contempt. 13 There are, of course, other cases where there is doubt as to the real meaning of the court's order where it is appropriate rather than make a penal order merely to restate the order in clearer form and order an injunction. Cawood v Green (NSWCA 26.6.1974, unreported) is such a case. 14 In my view, it is appropriate for the court to grant an injunction, either interlocutory or permanent where the matter before it is a charge of contempt. 15 It may well be that the Court will only exercise this jurisdiction in clear cases. I do not wish to go further than that because in any particular case the Court would have to balance the right of free speech as opposed to the right to be protected if one properly invokes the jurisdiction of the Court from either the Court or oneself being scandalized. The lack of examples, however, indicate that this is not a jurisdiction that is often invoked. 16 The motion seeks mandatory interlocutory injunctions to require the respondents to take the appropriate steps to reverse the excommunication affecting the applicant. Mr McClintock points to the well-known decision of Gummow J in Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 that there is no special barrier against granting injunctive relief in a mandatory form on an interlocutory application. There was also some discussion as to whether there could be, in any event, an effective prohibiting injunction such as a tit for tat injunction prohibiting the respondent from entering any synagogue or house of prayer until the plaintiffs and the respondent had taken the appropriate action to negate the excommunication of the controller of the defendant/applicant. 17 Before resolving these matters one must consider 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. 18 I was given a large number of authorities by Mr Brereton as to how far the Court will "interfere in the affairs of churches". I found this citation of authority of great academic interest. However, with great respect, none of these touch the present point. I do not consider that anything is to be gained at all by considering when a secular court will intervene with respect to the affairs of a religious administrative body or tribunal. 19 In particular, it is of no assistance to look at the reverse situation to the present where the secular courts have said that they are reluctant to review decisions of spiritual courts such as MacQueen v Freckleton (1909) 8 CLR 673 or Reg v Chief Rabbi [1992] 1 WLR 1036. 20 The present point is when a matter has been commenced by the plaintiffs in this Court, they have submitted to the jurisdiction of this Court, they then see that the other side is penalised because they have not agreed with the plaintiffs that the matter should be dealt with in a religious court. To put it another way, that the plaintiffs have sought excommunication of the controller of the applicant because he has not agreed to pursue the matter in a religious court. 21 Mr Brereton submitted that as a victory or loss in court proceedings may lead to all sorts of social pressures causing people to shun the person concerned and that this could not amount to contempt. That may well be so, at least up to a point. As to that point reference might be made to AG v Hislop [1991] 1 QB 514. However, Mr Brereton then went on to submit that a religious tribunal taking the same attitude was in like plight. 22 I can appreciate that this might be so in some circumstances. However, the authorities show that religious sanctions against such a person may well constitute a contempt of court. 23 I mentioned at the hearing on 30 July that there might be some assistance to be had by looking at the cases where a person was privileged from giving incriminating evidence where the incrimination was involving adultery, a matter in the 19th century only cognisable in the ecclesiastical courts. 24 In Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 335, three Justices of the High Court said: "It is well settled that 'a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture or ecclesiastical censure' to use the words of Bowen LJ in Redfern v Redfern [1891] P 139 at p 147." 25 Although in Blunt v Park Lane Hotel Ltd [1942] 2 KB 253, the English Court of Appeal considered the 20th century English courts were no longer concerned about ecclesiastical penalties for laity, it can be seen especially from the judgment of Goddard LJ at 258 that that was merely because it did not consider that spiritual courts could in 1942 mete out any effective censure. The evidence before me in the present case shows that that is not the case with members of the Jewish faith. This line of cases suggests that ecclesiastical censure is still a matter which is considered to be significant in secular law. 26 In A-G v Times Newspapers [1974] AC 273, 318, Lord Simon said that a threat, even after the trial was over, of a juryman or a witness was a contempt: Reg v Martin (1848) 5 Cox CC 356, and the same applied to a threat to a party: Re Mulock (1864) 3 Sw & Tr 599; 164 ER 1407. 27 In Mulock the defendant wrote the following letter to Mrs Chetwynd: "Madam … I now inform you that if, on or before Wednesday next, the 20th instant, your suit in the Court of Divorce be not withdrawn, I will on my own responsibility, apart from Mr Chetwynd or anyone else, publish the full truth of the case … borne out by irrefragable documents - I am, Madam, your obedient servant, T Mulock." 28 The Judge Ordinary, Sir James Wilde, said at 601 (1408): "From the pressure of this threat Mrs Chetwynd seeks protection, and she claims a right to approach this court free from all restraint or intimidation. It is a right that belongs to all suitors. … No one can doubt that the very offering of such a threat to a suitor in this Court, for such a purpose, is in itself, and quite independently of its subsequent fulfilment, a contempt of Court." 29 Lord Simon then referred to Lord Cottenham LC's decision in Re Ludlow Charities (1837) 2 My & Cr 316 at 339; 40 ER 661 at 670. Lord Cottenham held that it was a contempt of court after a Master had finalised his report to the Judge to threaten him that if he did not alter his view, certain information would be published about him. Lord Simon continued at [1974] AC 318: "Thus if the chairman of a social club threatened a judge with expulsion unless a certain forensic result ensued, it would in my opinion, unquestionably be contempt of court. … Similarly, in general, with any private pressure on a litigant to deter him from exercising his legal rights." 30 The reasons of members of the House of Lords in A-G v Times Newspapers were disparate. Lord Simon is the only Law Lord who deals with this particular problem, but what his Lordship says is well supported by authority. 31 Accordingly, in my view 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. 32 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. Although there was some attempt to say that what had happened, so far as the excommunication was concerned, was purely the act of the Tel Aviv Court, it was later conceded that whilst this might technically be so, the Court acted at the prompting of a representative of the plaintiffs or the respondent. 33 There are a number of other authorities illustrating how pressure on a litigant or witness may amount to a contempt of court, see eg Harkianakis v Skalkos (1997) 42 NSWLR 22 and North Australian Aboriginal Legal Aid Service Inc v Bradley (2001) 188 ALR 312. 34 I have held that what happened may well be a contempt of court. The more awkward question is whether it was so in this particular case. This is not a matter that I need to consider on this interlocutory application: it is a matter for the trial of the motion. The trial judge will also have to consider the element of intent behind the actions of the respondent and the plaintiffs. 35 It is clear on the authorities that litigants are not protected against all pressures, public or private, when they mount the stage of litigation. As is pointed out in many of the authorities, there are various public interests involved in this class of case, one being the protection of the dignity of the Court (using the word "dignity" in its technical sense); the other is the public interest in free discussion. Usually the line will be drawn in permitting fair reasonable and moderate public discussion on a matter without there being a contempt of court. However, as Borrie & Lowe's Law of Contempt 2nd ed (Butterworths, London, 1983) p 148 points out, the dividing line between what is thought to be fair and temperate and what is not, is obviously a matter for judgment and that again is a matter for the trial judge on this motion. See Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554 and Re William Thomas Shipping Co Ltd [1930] 2 Ch 368. 36 Lord Simon also makes it clear that it is a matter which greatly affects the balance of public interests that the proceedings have been concluded. However, whilst acknowledging that this must be so, three points must be made in the instant case.

(1) That the process here began before the litigation and the continued with what might be called a sting in the tail after the litigation finished though it may be that the trial judge will conclude that there was a threat before the litigation which was carried out in a spirit of revenge afterwards.

(2) It is, on the authorities, quite possible for there to be a contempt of court by something which happens after the litigation is finished, such as, for instance, as happened in Bennett's case unreported, where the losing party assaulted counsel for the winning party in a lift leading down from the court to the street.

(3) Contempt may occur both before litigation is commenced and after it is concluded if it affects the dignity of the Court or is part of conduct to pressurize a litigant not to proceed with litigation or the witness not to give evidence; see eg Fry v Bray (1959) 1 FLR 366. 37 A number of decisions have illustrated that acts of reprisal taken after litigation has concluded against a successful party may constitute a contempt. 38 The leading authority is AG v Butterworth [1963] QB 696, 719, where Lord Denning made it plain that "victimisation of a witness is a contempt of court, whether done while the proceedings are still pending or after they have finished". See also Clarkson v Mandarin Club (1998) 90 FCR 356 39 I pass now to the alleged misrepresentation of the decision that I made in July. 40 As I understand it, the high point of the case in this regard is that the plaintiffs and the respondent have been deliberately mounting a press campaign to misinform the public so that members of the public may well believe that the defendant agreed to have all disputes dealt with by the Rabbinical Court and that the controller of the applicant then reneged as a result of which he was excommunicated. 41 In fact my judgment said that:

(a) any agreement to deal with the matter before the Rabbinical Court was in respect of an Australian Beth Din not the Tel Aviv Court;

(b) that the agreement never came to fruition because of the principles in Masters v Cameron (1954) 91 CLR 353; and

(c) It was the plaintiffs who commenced proceedings in this Court. 42 Mr Brereton submits that it is not a contempt of court "merely" [my word, not his] to misrepresent the decision of a court. It is only when the conduct gets to scandalizing the court that there can be a contempt. Moreover, where the statement is made after the finalization of proceedings it is far more difficult than ever for a court to find that it has been scandalized. 43 In argument I mentioned the words of Sheppard J in Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89. At p 92, Sheppard J said: "The reasons for judgment of the members of this court comprise a public document which is, like any other public document, available for consideration, comment and criticism by members of the public. However, a reading of the passages of the various judgments selected by [the author of a brochure] … have been chosen selectively and may … have given a distorted impression of what this court decided. It is one thing to make public comment or criticism of a judgment of a court; it is another if that public comment or criticism be erroneous or misleading even if it be so by reason of what is omitted rather than by what is included."

His Honour went on to say: "I simply issue a word of caution concerning the use in commercial promotional material of extracts from judgments of the court. Not in these proceedings, but perhaps in others, the court will be astute to see to it that the public will not be misled by statements attributed to it and used out of context. If it emerged that that had occurred, the contempt of court which would be involved would be most serious and the punishment for it appropriate to its seriousness. The parties to this litigation should each understand that that is the case and not treat the reasons for judgment of members of the court as material which they may use freely for their promotional purposes without understanding the consequences which may ensue if what they say turns out to be misleading or even false." 44 In a note on that case in (1993) 67 ALJ 487 at 488, I suggested that that passage states what was understood to be the law in Australia, though there was very little support for it in the authorities. I pointed out that there are plenty of statements such as "Nothing is more incumbent upon courts of justice, than to preserve their proceedings from being misrepresented" per Lord Hardwick LC in The St James Evening Post case (1742) 2 Atk 469; 26 ER 683, but almost all such statements are made in connection with proceedings which have not been completed. 45 Mr Brereton referred me to my decision in Arabic Community Business Directory Pty Ltd v Arabic Australian Business Directory Pty Ltd, 21 March 1996, unreported, where I said: "The main thrust of the complaint is that the court's order was misrepresented. That may be a contempt of court."

I then cited the passage that I have quoted above from Sheppard J and continued: "There is, however, considerable doubt about that proposition and the only authority that appears to support it is R v Lawley King's Bench 1731, unreported referred to in Fox's Contempt of Court at page 144."

I then referred the matter to the Court of Appeal which at that stage alone had jurisdiction in that sort of contempt matter. 46 Mr Brereton says that Lawley's case is in fact reported in (1731) 2 Strange 904; 93 ER 930. Although the case is very sparsely reported, it would appear Mr Brereton is correct that it is a case of contempt by persuading a witness not to appear and give evidence. This was the view taken by counsel in argument in R v Rafique [1993] QB 843, 846. 47 Mr Brereton submits that the press statements in the instant case did not misrepresent the decision of the court. I do not consider that that statement is necessarily correct. That will be a matter for the trial judge. However, it is clear that, if there were a misstatement it was in connection with a collateral part of the reasons for judgment (that dealing with whether there was an agreement to refer the disputes to a religious court) rather than the main thrust of the decision. 48 As I said in my short reasons when I reserved this decision, the court needs to be on the qui vivre to preserve its dignity and to prevent parties misrepresenting its decisions. In this era of the spin doctor, such vigilance is more needed than ever. However, I agree with Mr Brereton that the requirement to use the heavy machinery of the contempt process and the right to freedom of speech means that it is only when the misrepresentation gets to the stage of scandalizing the court that a contempt is committed. 49 In R v Dunbabin; Ex Parte Williams (1935) 54 CLR 434 the High Court made it perfectly clear that a publication, even after the case was over, of material with a tendency to disparage the authority of the court was a contempt. The decision, however, does not suggest that material that falls short of this benchmark, is a contempt, indeed, the reference to a citizen's right of honest criticism of court decisions based on rational grounds, tells against it. 50 Although there are some cases involving improper criticism or misrepresentation of final decisions of the court, I agree with Mr Brereton that the court takes far more seriously misrepresentations whilst the case is pending. 51 In the present case, I am not satisfied that there is an arguable case of scandalizing the court in what has occurred. 52 In some cases, the proper procedure where a contempt has been said to have been committed and continuing contempts are feared is not to seek an interlocutory injunction, but to ask the court to issue a warrant under Part 55 of the Supreme Court Rules. However, apart from contempts in the face of the court, in view of Part 55 Rule 10, it would seem to me that this procedure may only be used where there is a fear that the alleged contemnor may leave the jurisdiction. 53 For all these reasons, I do not consider that I should grant any interlocutory injunction. However, in my view, the costs of this interlocutory application should be costs in the motion for contempt. 54 After completing these reasons, I was told that, by consent, Einstein J has adjourned the final hearing of the contempt motion as a result of the ill health of the natural persons controlling the corporate parties. 55 This decision does have a bearing on the decision I am making as, I understand that there will be at least a further month before the contempt proceedings are finalized. However, I have reached the view that I should not alter my view, but reserve leave in case there is any threatened repetition of the impugned conduct or the defendant considers that the length of time that the excommunication is in force has become intolerable. 56 Of course, it would be even better if the parties stopped harassing each other and abandoned the impugned conduct on the one side and abandoned the contempt proceedings on the other. 57 Thus, the only orders I will make are to record that the Court makes no interlocutory order at this stage, the costs of the interlocutory proceedings are to be costs in the motion for contempt and that there is liberty to apply on three days' notice.

Last Modified: 08/28/2003 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.