In Ulman v Live Group Pty Ltd [2018] NSWCA 338, the Court of Appeal of New South Wales considered the question of the extent to which a threat by a religious tribunal of religious sanctions for failing to submit to its jurisdiction that was made against a party to a commercial dispute  constituted criminal contempt of the secular courts.

The appellants were the judges [dayanim] and registrar of the Sydney Beth Din, which heard a commercial dispute arising out of an agreement between Live Group Pty Ltd – of which the second respondent, Reuven Barukh, was a director – and SalesPort LLC, a company registered in Delaware, USA. In January 2016, Live Group entered into an agreement with SalesPort to assist it 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 hereby 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 …” [15].

On 18 July 2016, Live Group terminated the agreement in accordance with the termination clause in the agreement [16]; and Mr Jesse Kuzecki, a director of SalesPort, duly 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 [21]. Mr Barukh, however, refused to submit to the jurisdiction of the Beth Din, arguing that the proper forum for the resolution of the dispute was a civil court.

The appellants then told Mr Barukh’s attorneys that unless he submitted to the Beth Din’s jurisdiction he would be subject to a number of religious sanctions: he would not be counted to a minyan, he would not be able to receive an aliyah to the Torah and he would not be offered any honour in the synagogue. Moreover, “There are further sanctions that will be applied should your client maintain his recalcitrance” [31].

As a result, in December 2017 at first instance, Sackar J found the appellants guilty of two charges of criminal contempt on the basis that they had threatened Mr Barukh with religious sanctions if he did not submit to the jurisdiction of the Beth Din and that their threats had had a real tendency to interfere with the administration of justice generally. Sackar J imposed monetary penalties on each of the appellants: see Live Group Pty Ltd v Rabbi Ulman [2017] NSWSC 1759.

The principal issues on appeal were:

• whether Sackar J’s findings of contempt were, in fact, those that had been charged (Ground 1);
• whether Sackar J had erred in finding that the two communications placed improper pressure on Mr Barukh to desist from asserting that the alleged commercial dispute be resolved in a civil court and, accordingly, had had a real tendency to interfere with the administration of justice generally (Ground 2); and
• whether the penalties imposed on the appellants were manifestly excessive (Ground 3).

Allowing the appeal in part, the Court held as follows:

• in relation to Ground 1 (per Bathurst CJ and Beazley P, McColl JA agreeing), that Sackar J’s findings of contempt were those that had been charged: the appellants had been charged with contempt on the basis of an interference with the administration of justice generally [113]-[121].
• in relation to Ground 2 (per Bathurst CJ and Beazley P, McColl JA dissenting), that the communications in question had had a real tendency to interfere with the administration of justice generally: they were unambiguous threats that religious sanctions would be imposed on Mr Barukh if he persisted in asserting that the alleged commercial dispute be resolved in a civil court and were not confined to securing his attendance at the Beth Din [154]-[159], [170]-[179]: the pressure imposed on Mr Barukh not to exercise his right to have a civil court determine the alleged commercial dispute had been improper and the Beth Din had been seeking to prevent a corporation from having a potential dispute adjudicated in the only forum where the dispute was justiciable [160]-[169], [180]-[186].
• in relation to Ground 3 (per Bathurst CJ and Beazley P), that the penalties imposed on the appellants had been manifestly excessive, having regard to the fact that it had been a first offence, their conduct had not been contumacious, there was little risk that they would reoffend and they had suffered humiliation as a result of the publicity [198]-[200].

The court reduced the financial penalties imposed for the contempt.

[With thanks to Howard Friedman for the alert.]

Postscript: The Guardian subsequently reported that a child sexual abuse survivor, Manny Waks, had called on the four rabbis on the Beth Din to resign from the Rabbinic Council of Australia and New Zealand.