(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: (a) 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; (b) the fourth appellant pay to the Registrar of the Court a fine for contempt of court in the sum of $2,500; and (c) the appellants pay the respondents’ costs of the proceedings below on an ordinary basis. (3) The appellants to pay 75 per cent of the respondents’ costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Headnote

[This headnote is not to be read as part of the judgment]

The appellants are Jewish Rabbis and the judges and Registrar of the Sydney Beth Din, a religious court that administers Jewish law. The Beth Din issued a summons to the second respondent, an observant Jew, in respect of an alleged commercial dispute arising out of an agreement between the first respondent, of which the second respondent was a director, and another company. The second respondent refused to submit to the jurisdiction of the Beth Din, alleging that the proper forum for the resolution of the dispute was a civil court. The appellants informed the second respondent that unless he submitted to the Beth Din’s jurisdiction, he would be subject to a number of religious sanctions. The threats were contained in two communications to the second respondent.

The respondents alleged that the appellants had committed a contempt of court in threatening to impose the religious sanctions. The primary judge found the appellants guilty of two charges of criminal contempt on the basis that each of the two communications had a real tendency to interfere with the administration of justice generally. His Honour imposed monetary penalties on each of the appellants.

The principal issues on appeal were:

1. Whether the primary judge’s findings of contempt were those that were charged (Ground 1);

2. Whether the primary judge erred in finding the two communications placed improper pressure on the second respondent to desist from asserting that the alleged commercial dispute be resolved in a civil court and, accordingly, had a real tendency to interfere with the administration of justice generally (Ground 2); and

3. Whether the penalties imposed on the appellants were manifestly excessive (Ground 3).

The Court held, allowing the appeal in part:

In relation to Ground 1

Per Bathurst CJ and Beazley P (McColl JA agreeing)

(i) The primary judge’s findings of contempt were those that were charged. The appellants were charged with contempt on the basis of an interference with the administration of justice generally: [113]-[121].

Coward v Stapleton (1953) 90 CLR 573; [1953] HCA 48; Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245; [1981] HCA 35; Inghams Enterprises Pty Ltd v Timania Pty Ltd (2005) 221 ALR 823; [2005] FCAFC 155 considered.

In relation to Ground 2

Per Bathurst CJ and Beazley P

(ii) The communications had a real tendency to interfere with the administration of justice generally. They were unambiguous threats that religious sanctions would be imposed on the second respondent if he persisted in asserting that the alleged commercial dispute be resolved in a civil court and were not confined to securing the second respondent’s attendance at the Beth Din: [154]-[159], [170]-[179].

Attorney-General v Times Newspapers Ltd [1974] AC 273; Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242; James v Robinson (1963) 109 CLR 593; [1963] HCA 32; The Prothonotary v Collins (1985) 2 NSWLR 549; Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3; Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 referred to.

(iii) The pressure imposed on the second respondent not to exercise his right to have a civil court determine the alleged commercial dispute was improper. The Beth Din was seeking to prevent a corporation from having a potential dispute adjudicated in the only forum where the dispute was justiciable: [160]-[169], [180]-[186].

Attorney-General v Times Newspapers Ltd [1974] AC 273; Hillfinch Properties Ltd v Newark Investments Ltd [1981] The Times 9 (1 July 1981); Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41; Harkianakis v Skalkos (1997) 42 NSWLR 22; Greenberg v Greenberg 238 AD 2d 420 (1997); Bhagat v Global Custodians Ltd [2002] NSWCA 160; Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775 considered.

Per McColl JA (dissenting)

(iv) The evidence did not establish beyond reasonable doubt that the communications imposed improper pressure on the second respondent not to exercise his right to access a civil court such that they had, as a matter of practical reality, a tendency to interfere with the due course of justice. The appellants were merely seeking to ensure the second respondent’s compliance with Jewish law and his attendance at the Beth Din: [241]-[242], [262]-[283].

Witham v Holloway (1995) 183 CLR 525 at 534; [1995] HCA 3; John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; [1955] HCA 12 referred to.

In relation to Ground 3

Per Bathurst CJ and Beazley P

(v) The penalties imposed on the appellants were manifestly excessive having regard to the fact that: this was a first offence; the appellants’ conduct was not contumacious; there was little risk that the appellants would reoffend; and the appellants had suffered humiliation as a result of publicity: [198]-[200].

Judgment

BATHURST CJ and BEAZLEY P: On 14 December 2017, the primary judge, Sackar J, found the appellants guilty of two charges of criminal contempt on the basis that they had threatened the second respondent, Mr Reuven Barukh, with religious sanctions if he did not submit to the jurisdiction of the Sydney Beth Din, a religious court that administers Halacha, or Jewish law: Live Group Pty Ltd v Rabbi Ulman [2017] NSWSC 1759. The sanctions had been threatened against Mr Barukh in the context of an alleged commercial dispute arising out of an agreement between the first respondent, Live Group Pty Ltd (Live Group), an Australian registered corporation, and SalesPort LLC (SalesPort), a Delaware registered company. Mr Jesse Kuzecki, a director of SalesPort, had filed a claim with the Sydney Beth Din against Mr Barukh, Mr Barukh’s mother and sister, Live Group and another company. Mr Barukh’s mother was a director of Live Group. His sister had never had any involvement with the company or its associated entities. Mr Kuzecki’s claim was particularised as being in respect of “Breach of Agreements; Service and Partnership Agreements & Fraudulent Use of Company Funds”. Mr Barukh’s position was that, at all times, the only business dealings between him and Mr Kuzecki were in their respective roles in the two corporate entities, Live Group and SalesPort respectively. The jurisdiction of the Sydney Beth Din is exercised by the first, second and third appellants, who are Jewish Rabbis. The fourth appellant is the Registrar of the Beth Din, having been appointed to that position in October 2016. Prior to that, he was the Secretary, but also fulfilled the function of Registrar. It will be convenient to refer to the Beth Din and the appellants without distinguishing between them and without separately distinguishing the role of the fourth appellant unless necessary. According to the appellants, the Beth Din has authority to determine civil disputes between observant Jews, its jurisdiction deriving from the interpretation of Jewish law by the Rabbis who constitute themselves as a Beth Din. In other words, “their ultimate authority comes from themselves in the sense that as a community of Dayan … they interpret as best they can … the Halachic law”. Mr Barukh is an observant Jew who lives in Sydney. Mr Kuzecki is also Jewish and lives in either Israel or the United States, or possibly both. Jewish law, at least as administered by the Beth Din, does not recognise the existence of a separate corporate legal identity and, accordingly, does not recognise the existence of a corporate veil. Upon receipt of Mr Kuzecki’s claim, the Beth Din sought to exercise its jurisdiction by issuing a summons to Mr Barukh, his mother and his sister. Mr Barukh refused to submit to the jurisdiction of the Beth Din. The appellants informed Mr Barukh that unless he acquiesced in the Beth Din process, he would be subject to a number of religious sanctions. The threats were contained in an email of 29 December 2016 and a letter of 28 February 2017. On 9 February 2017, Live Group and Mr Barukh commenced proceedings in the Supreme Court of New South Wales, seeking declaratory and injunctive relief to restrain the Beth Din from hearing the dispute and from continuing to threaten the imposition of religious sanctions on Mr Barukh. Subsequently, the claim was amended to include a claim that the appellants, by threatening the sanctions, had committed a contempt of court. The primary judge made declarations that, by sending the email and the letter, each of the appellants had committed a criminal contempt of court, as each communication “had a real and definite tendency to interfere with the administration of justice”. His Honour ordered that the appellants be permanently restrained from taking any steps in relation to the threat or imposition of sanctions for Mr Barukh’s failure to comply with the summons issued by the Beth Din, his failure to “recant or acquiesce” in the Beth Din process, or his failure to submit to the jurisdiction of the Beth Din. By way of penalty, his Honour imposed a monetary penalty of $20,000 on the second appellant, Rabbi Gutnick, and a penalty of $10,000 on each of Rabbi Ulman, Rabbi Chriqui, and Rabbi Schlanger, the first, third and fourth appellants respectively. His Honour also made costs orders in favour of the respondents, including an order for indemnity costs for part of the proceedings: Live Group Pty Ltd v Rabbi Ulman [2018] NSWSC 393.

Issues on the appeal

By their amended notice of appeal, the appellants raised the following issues:

Whether the primary judge’s findings of contempt were those that were charged: appeal grounds 1(c), 1(d), 2(c), 2(d). 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). Whether the primary judge erred in imposing penalties on the appellants: appeal ground 3. 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.

Cross-appeal

The respondents cross-appealed, seeking, inter alia, the following orders:

“2 A declaration that a fair-minded lay observer might reasonably apprehend that the first, second, third and/or fourth appellants in their capacities as representatives of the Jewish Ecclesiastical Court known as the ‘Sydney Beth Din’ might not bring an impartial mind to the resolution of the question or questions required to be decided in respect of the Dispute.

3 An order that the appellants/cross-respondents be restrained from taking any step to adjudicate upon or arbitrate in respect of the Dispute.”

Notice of contention

The appellants filed a notice of contention in response to the cross-appeal, contending that the primary judge erred in finding that there were strong grounds for a finding of apprehended bias and in failing to find that the Beth Din’s conduct was consistent with the Halachic rules that applied to it.

Background

Live Group is a digital marketing company. In January 2016, it entered into an agreement with SalesPort whereby SalesPort was to assist Live Group with its social media marketing. The agreement contained the following dispute resolution clause:

“ Conflict resolution

In a case of dispute that can not be resolved by the parties or via a 3rd party which is acceptable to both sides we here by agree that the matter shall be brought to the Chief Dayan of Sydney AUS. Rabbi Gutnick who will hear both claims in person or video conference or by phone and his decision will be final and acceptable on both sides ...”

On 18 July 2016, Live Group terminated the agreement in accordance with the termination clause in the agreement. In August or September 2016, at the request of one of his Israeli Rabbi colleagues, Rabbi Ulman met with Mr Kuzecki in Sydney. Rabbi Schlanger was present for part of the meeting. Mr Kuzecki informed Rabbi Ulman of his grievance with Mr Barukh and said that he wanted to proceed with a Din Torah in Sydney. A Din Torah was described in submissions as a final adjudication of a dispute according to Jewish law. Mr Kuzecki confirmed his intention to make a claim in an email dated 17 September 2016 to Rabbi Schlanger, into which Rabbi Ulman, amongst others, was copied. Mr Kuzecki stated in his email that the Sydney Beth Din had agreed to accept and conduct the “financial beth din ... under the Arbitration act”. Further communications followed, including an email dated 22 September 2016 from Mr Kuzecki to Rabbi Schlanger stating that his lawyer wanted to speak to the Beth Din’s lawyer, and that “we are looking to have the Beth Din decision Binding”. In another email of the same day, into which Rabbi Ulman was copied, Mr Kuzecki stated that his lawyer:

“… will put you in touch with their in house Attorney to guide us as to what & How exactly needs to happen from a legal point of view to make the Beth Din proceeding Binding by the civil court system.”

On 27 September 2016, Rabbi Gutnick emailed Mr Kuzecki advising him of the arbitration process that is conducted within the Beth Din, stating:

“The Arbitration agreement would have to be drawn up in a manner that would be binding in Accordance with the Commercial Arbitration Act NSW 2010, so that you could enforce it. lt must carefully and completely delineate the paramaters of the dispute and the matters that require determination by the Judges.

I have attached a sample Din Torah agreement that incorporates the Arbitration Act. However it is almost certain that your barrister will want a much more detailed document. That is fine provided he incorporates everything in this shorter one - in particular clauses 1,4,5 and 6, and we get to look at it before it is finalised.”

The sample arbitration agreement attached was in the following terms:

“Whereas a dispute has arisen in relation to Breach of Agreements; Service and Partnership Agreements & Fraudulent Use of Company Funds, and the parties are desirous of resolving this dispute via binding arbitration in the manner of a Din Torah

l/We agree to the submission of this matter, including all claims and counterclaims arising in respect of it, to the Sydney Beth Din (Beth Din) for a binding arbitration under the Arbitration Act under the following terms:

1. The Beth Din’s rules of procedure are those of Jewish law.

2. Each party to this matter shall have by signing this document, indicated their assent to an arbitration under these terms.

3. The Beth Din may continue the arbitration and conclude it ex-parte if any party fails, after receiving reasonable notice, to attend any hearing.

4. The Beth Din has the power to make orders including exparte orders including orders for discovery and powers of subpoena, from the date upon which all parties assent to the terms of this agreement until such time as the Beth Din has completed its work in Jewish law.

5. The Beth Din has the power to make orders both as to its own costs and as to the costs incurred by any party in participating, bringing or defending any claim or counterclaim. The Beth Din may make orders as to security for costs and in respect of claims.

6. The Beth Din shall decide the matter under Jewish Law in a manner of pshoro or pshoro kroivo lodin, incorporating such other laws as Jewish law deems appropriate.

7. The Beth Din shall comprise one Dayan (Judge)/ three (Dayanim) Judges.”

Mr Kuzecki signed the sample arbitration agreement and dated it 5 October 2016. The following day, on 6 October 2016, Mr Kuzecki filed a claim in the Beth Din, naming himself as the plaintiff and Mr Barukh, Mr Barukh’s mother and sister, Live Group and another company as the defendants. As stated above, he particularised his claim as: “Breach of Agreements: Service and Partnership Agreements & Fraudulent Use of Company Funds”. No monetary sum was claimed. The claim form bore the initials “JK”. On 14 December 2016, Rabbi Schlanger, on behalf of the Sydney Beth Din, issued the “First Summons to a Din Torah” (the Beth Din summons). Mr Kuzecki was named as the plaintiff and Mr Barukh and Mr Barukh’s mother and sister were named as the defendants. The Beth Din summons stated:

“Claim:

The plaintiff seeks a Din Torah with the defendant and the plaintiff claims damages up to the amount of $5 million dollars for breach of service and partnership agreements and Fraudulent Use of Company Funds.

The Din Torah will take place in front of the judges of the Sydney Beth Din in person and via Skype for those unable to attend in person. Initially there will be a directions hearing in front of one judge to make the appropriate arrangements for hearing the matter including the signing of an arbitration agreement. At that time orders will be issued if requested in relation to discovery or any other appropriate matters. The defendant will be entitled to make application for summary dismissal at that time.

Please email the secretary of the Beth Din secretary@bethdin.org.au with your availability and skype contact details by 5pm Friday 16th December 2016

By Order of The Beth Din”

Mr Barukh responded to the Beth Din summons by a letter dated 20 December 2016 from his legal representatives, Lazarus Legal Group, to Rabbi Schlanger. Lazarus Legal Group advised that Mr Barukh was “extremely perturbed and upset” that Mr Kuzecki had brought “such bold and unfounded allegations before the Beth Din”. They also advised that Mr Barukh’s view was that the only reason that Mr Kuzecki had referred “this alleged dispute” to the Beth Din was because Mr Kuzecki “would not have any reasonable prospect of succeeding on such unfounded and misrepresented claims in any civil court in any country”. The letter continued that a hearing before the Beth Din “may [not] take place in the absence of either of the parties” and that “Mr Barukh has no intention of appearing at a Din Torah” with Mr Kuzecki because he did not believe that the Beth Din was the appropriate forum in which Mr Kuzecki’s grievances should be aired. Complaint was also made that Mr Barukh’s mother, who was not well, and sister had been included in the summons, neither having had “any dealings with Mr Barukh’s business affairs”. Lazarus Legal Group requested that the Beth Din:

“… withdraw the First Summons to a Din Torah on the basis that it is … based on claims by [Mr Kuzecki] that are unsubstantiated and misguided.”

They invited Mr Kuzecki to bring proceedings in a civil court in Australia if he considered that he had “a proper claim” against Mr Barukh. Rabbi Schlanger responded by email on 22 December 2016, stating:

“1. 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. In accordance with Jewish Law they are not permitted to refuse such summons.

…

3. Notwithstanding the above, in this particular case, your client has signed an agreement (enclosed) which contains a conflict resolution clause referring all disputes to Rabbi Moshe Gutnick who is one of the heads of the Beth Din. Rabbi Gutnick would prefer to have the matter heard by the whole Beth Din and believes this is the fairest and best way to proceed, hence the summons; but if the involvement of the entire Beth Din is for whatever reason causing concern, Rabbi Gutnick is prepared to hear the matter himself.”

Rabbi Schlanger asked that Mr Barukh “give us sometime next week for a directions hearing” with the intention of the matter being heard in February 2017. Lazarus Legal Group responded on the same day, again stating that Mr Barukh had no intention of appearing and further stating that this was “not a matter that can be adjudicated upon by the Beth Din”. On 29 December 2016, Rabbi Schlanger wrote to Lazarus Legal Group. It is necessary to set out the email in full, as it identifies the sanctions to be imposed on Mr Barukh if he did not respond to the Beth Din summons and is the letter that is the subject of charge 2 in the statement of charge:

“Dear Mr Lazarus

The Beth Din has asked me to convey to you the following:

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. This is especially the case as your client has specifically nominated Rabbi Gutnick from the Beth Din to adjudicate any dispute, such nomination having also standing in civil law. As such your client does not have the option to avoid his responsibility in accordance with Jewish Law and the Beth Din can indeed adjudicate this matter.

Taking into account your return from leave only on January 16, 2017 please take note of the following and please inform your client accordingly.

Unless by 5pm January 26 2017 the Beth Din hears from you on behalf of your client 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.

If your client believes the plaintiff’s case is without merit he will have the opportunity to seek dismissal on whatever grounds he sees fit at the first directions hearing. Besides your client’s obligation in Jewish Law the Beth Din has prima facie a signed agreement - which you have not contested - binding your client to Rabbinic Arbitration and the Beth Din process. As such The Beth Din is not prepared to entertain any further pleas on this matter other than before it at that first directions hearing.

We advise and urge your client 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.”

Lazarus Legal Group responded on 27 January 2017 as follows:

“Your attempt to intimidate our client by threatening various forms of ex-communication will not be tolerated. In the event that you proceed with any of the foreshadowed steps outlined in your letter, we have been instructed to institute proceedings forthwith for both injunctive relief and/or damages for economic and reputational loss.”

Having received no response to that letter, Lazarus Legal Group wrote again on 30 January 2017, again pointing out that the Beth Din summons was “entirely misconceived” and that unless an undertaking to cease to take any further steps in relation to the summons was received by 1 February 2017, they would take such further steps as they were advised, including the issuing of proceedings in the Supreme Court. Rabbi Schlanger emailed Lazarus Legal on 31 January 2017, stating, relevantly:

“3. … 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. The Beth Din has a duty, when asked to do so, to summons parties to attend a Din Torah. It is a duty that it can not refuse. As with any court the defendant has the option to file a motion to dismiss an action and if the Beth Din is satisfied after giving the plaintiff the opportunity to respond, the action can be dismissed. However a member of the Jewish Faith does not have the religious option to dismiss the Beth Din.

Of course we live in a free country and anyone can refuse to respond or attend a Beth Din. However such an action will invoke an inevitable religious consequence. The party will be found in contempt of the Beth Din and this will usually mean that the party will not be allowed to be called to the Torah or counted to a Minyan. This is a simple matter of religious law cause and effect ...

The individual in contempt of religious law has made a choice to exclude himself from the religious framework … and that is his choice …

From the perspective of civil law the Beth Din acts as a binding arbitrator whose decision is then upheld by the civil courts …

Your various threats of civil action can have no influence on the Beth Din.

…

5. In summation Jewish Law requires your client to attend a Din Torah. You are open to file any motion you wish with the Beth Din in that regard, and after giving the plaintiff the option to respond the Beth Din will rule. However, as stated above, refusing to attend a Din Torah is not an option for someone who wishes to remain within the framework of Orthodox Jewry.”

As noted earlier, the respondents commenced proceedings in the Supreme Court on 9 February 2017, seeking declaratory and injunctive relief on both an interlocutory and final basis. On 14 February 2017, the appellants offered to give certain undertakings in order to avoid an interlocutory hearing and to give the parties time to prepare for the final hearing. On 15 February 2017, directions were given and the following undertakings were noted:

“The Court NOTES that the first, second, third and fourth defendants undertake to the Court that they will not, without first giving 21 days’ notice of their intention to do so in writing to the plaintiffs’ solicitors:

A. take any step to adjudicate upon or arbitrate in respect of the Dispute or the Agreement (as those terms are defined in the Summons);

B. institute proceedings or take any step which would involve one or more of the religious sanctions referred to in the email from the fourth defendant on behalf of the Sydney Beth Din to the plaintiffs’ solicitors dated 29 December 2016 (a copy of which is behind tab 11 of Exhibit RB-1 to the affidavit of Reuven Barukh sworn 9 February 2017).”

On 28 February 2017, the appellants’ solicitors, Schweizer Kobras, wrote to Lazarus Legal Group. As this letter is the subject of charge 6 in the statement of charge, it is also necessary to set it out in full:

“LIVE GROUP PTY LTD V RABBI ULMAN & ORS SUPREME COURT OF NSW PROCEEDINGS NO. 2017/42068

We refer to the undertakings given to the Supreme Court in this matter on behalf of the first to fourth defendants on 15 February 2017.

We are hereby instructed to give notice to the plaintiff on behalf of the first to fourth defendants (the Beth Din) that unless the plaintiff 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 (29 December email) and sent at 12:49 pm.

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.

If the plaintiff wishes to be heard in the Beth Din against the imposition of these sanctions then he may make an application to the Beth Din. In that case, the plaintiff should communicate with the secretary of the Beth Din to make an appointment to be heard.

On the other hand, if the plaintiff wishes to press the Supreme Court for an interlocutory injunction to prevent the Beth Din from imposing the sanctions referred to in the 29 December email then we are instructed that our clients will cooperate with the plaintiff to obtain an early hearing by the Supreme Court of that application.”

Although that was the end of the correspondence between the parties relevant to the primary judge’s findings in respect of contempt, the appellants also relied upon the following affidavit evidence of Rabbi Gutnick of 3 July 2017, as representing their position in relation to the imposition of sanctions. Rabbi Gutnick referred to the undertakings given on 15 February 2017 and continued:

“5. In the result, there are at present no Halachic sanctions in force against any of the Present Plaintiffs, whether the Threatened Sanctions or otherwise.

6. However, if when the Supreme Court Proceedings finally conclude there is no legal prohibition against or legal impediment to the Sydney Beth Din continuing to deal with the Underlying Dispute according to Halacha, then - assuming the continued existence of the Underlying Dispute and the continued refusal by the Present Plaintiffs of their Halachic obligation to answer the Sydney Beth Din’s summons - it is likely that the Sydney Beth Din will impose against the Present Plaintiffs the sanctions set out in the email of 29 December 2016 until they comply with those obligations.

…

8. If as a result of any findings or orders that are made by this Court in the Supreme Court Proceedings there is a legal prohibition against or legal impediment to the Sydney Beth Din continuing to deal with the Underlying Dispute, then the Sydney Beth Din would not impose any of the Threatened Sanctions, or any other sanctions, against the Present Plaintiffs. The position of the Sydney Beth Din in that event would be that there was then no dispute before it that it could hear, and it would therefore take all such steps as were necessary to withdraw the summons it has issued to the Present Plaintiffs. It is axiomatic, and in accordance with Halacha, that the Sydney Beth Din would obey such an order of this Court, in the spirit as well as the letter.”

Rabbi Gutnick also deposed that no sanctions had been threatened against Mr Barukh for commencing or maintaining the proceedings in the Supreme Court.

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

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.”

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”. 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)

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. 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. 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. 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. 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.”

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. 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’”. 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

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. 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

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. Relevantly, the respondents in their further amended summons:

Challenged the jurisdiction of the appellants to arbitrate or otherwise adjudicate upon the alleged commercial dispute referred to in the Beth Din summons. 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. Challenged the jurisdiction of the appellants to arbitrate in respect of the agreement entered into between Live Group and SalesPort. 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. 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. Sought declarations:

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 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.

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.

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

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

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”. 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.”

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 …”

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 …”

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.”

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.”

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. 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

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.”

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

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.”

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. 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

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. 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.”

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.”

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 …”

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. 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.”

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.”

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.

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. 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. 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”.

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. 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. 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.”

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.”

In the result, his Honour considered it unnecessary to make any orders, the application before him being interlocutory.

First issue on the appeal

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

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

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. 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.”

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. 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. 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. 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. 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. 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. 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

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.”

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. 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. 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. 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. 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. 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. 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

The first issue for determination is whether the primary judge’s findings of contempt were those that were charged. 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. 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”.

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. 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).”

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. 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.”

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. 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. 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. 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]”. 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. 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. 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. 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. 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. 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. 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. 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.

Second issue on the appeal

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)

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. 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.

Parties’ submissions

Conflation error

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. 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. 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. 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.

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.”

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.”

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. 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. 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. 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. 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.”

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.”

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. 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. 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

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. 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. 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. 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. 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. 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. 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. 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.

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”.

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. 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. 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. 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

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. 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. 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 c