Sydney Beth Din found guilty of threatening religious sanctions

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Sydney’s Supreme Court Justice John Sackar has declared the Sydney Beth Din had threatened sanctions against a businessman who refused to attend a Din Torah.

Rabbi Moshe Gutnick

Reuven Barukh refused to attend a Din Torah at the Sydney Beth Din to hear a commercial case between his company Live Group Pty Ltd and the Delaware-registered Salesport LLC

The Beth Din advised him he could be liable to be barred from being in a minyan, called up to the Torah or receiving an honour in a synagogue.

In the hearing Reuven claimed the Beth Din cannot conduct arbitration proceedings, that the Beth Din had had “apprehension of bias” and that the Beth Din is in contempt by threatening religious sanctions.

Names a s the defendants representing The Beth Din were Rabbi Yehoram Ulman, Rabbi Moshe Gutnick, Rabbi Michael Chriqui and Rabbi Eli Schlanger.

Rabbi Gutnick told the court that in 2006 the Jerusalem Rabbinic High Court stated anyone “who attempted to undermine the authority should be sanctioned”

In January 2016 Live Group entered an agreement with digital marketing company SalesPort

The contract contained a conflict clause stating “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…”

In July 2016 Barukh terminated the agreement

Shortly after Rabbi Ulman met Jesse/Joseph Kuzecki in Jerusalem who subsequently made an application for the Din Torah online to hear the case.

Rabbi Gutnick emailed later:

Dear Joseph,

Firstly I apologise that I have not been able to give this the proper attention it deserves as I have been travelling extensively and have only now returned home. I haave [sic] tried to call Victor and will continue to do so if this doesn’t satisfy your needs.

Rabbi Yoram Ulman

The matter would be heard pretty much the same way as a regular arbitration that your lawyers are used to. The only difference is that the Judges play a more active role in a Din Torah as Judges in our law takes a more inquisitorial role to a hearing than the common law system where the two suides [sic] place an adversarial role.

…

I believe this answers all your questions . Please feel free to show this email to Victor and if he needs any further illucidation [sic] I would be happy to try and call again.

All the best

In October 2016  Kuzecki sent an email stating: “I would now like to respectively request that the Beth Din execute its legal authority and summon Reuvan Barukh (and all other shareholders of Live Group Pty Ltd ) to appear for arbitration proceedings at the Sydney Beth Din. I am requesting this assistance from the Sydney Beth Din due to the unfortunate fact that Reuven, in addition to flagrantly breaking Jewish Law by failing to reimburse me financially for monies owed and also taken my half of a company livecapital.com.au which I built…”

The hazmona [summons] was served to Baruhk in December 2016, Kuzecki emailed Rabbi Gutnick stating :

“Thank you for all the support It is crucial that now the other side knows of the [Teviah] to stay on top of this so the other side does not have find the time to siffen off funds or transfur ownership to 3rd parties to ascape a potential loss do the the payout [sic]”

Barukh’s lawyers wrote to the Beth Din on December 20:

“Clearly no hearing of the Beth Din may take place in the absence of either parties. Mr Barukh has no intention of appearing at a Din Torah with the Plaintiff, and in refusing to do so, he expresses his sincere respect to the Judges of the Sydney Beth Din, but believes that the Beth Din is not the appropriate forum in which the Plaintiff’s grievances should be aired.

Furthermore, Mr Barukh is extremely concerned and upset that his mother, who is not well, should have been dragged into this issue, and more so his sister Elana who is also listed as Defendant. Neither his mother or sister has any dealings with Mr Barukh’s business affairs, and neither of them would know who the Plaintiff is or what his claim is about.

In the circumstances, we request the Beth Din to withdraw the First Summons to a Din Torah on the basis that it is with respect based on claims by the Plaintiff that are unsubstantiated and misguided.

Should the Plaintiff believe that he has a proper claim against Mr Barukh, he is invited to bring proceedings in a civil court here in Australia and to put forward proper legal evidence upon which he proposes to rely in prosecution of his Claim.”

Rabbi Schlanger responded on behalf of the Beth Din: “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 a summons.”

The original clause for the conflict resolution was mentioned by the Beth Din

Isaac Volinski and Rabbi Eli Schlanger

But Barukh’s lawyer shot back a letter stating: “We do not propose to continue debating this matter with you through the medium of correspondence. We have made it abundantly clear that this is a civil matter and if the Plaintiff wishes to pursue his claim, he is welcome to take whatever action he deems fit in the appropriate courts.

This is not a matter that can be adjudicated upon by the Beth Din and our Client has no intention of appearing.”

But Beth Din responded signed off by Rabbi Schlanger:

“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), and 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 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.”

Back came: “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 injunction relief and/or damages for economic and reputational loss.

…

Rabbi Michael Chriqui

Our client is prepared, given his strong affinity to the Jewish faith, to appoint a representative to meet with Rabbi Gutnick on a one on one and confidential basis. Failing your agreement to this course, which we would suggest is clearly appropriate in the circumstances, we request your written undertaking to desist from proceeding with the threatened action and withdraw from any proposed hearing process.

Unless we are in receipt within 7 days of your agreement to the proposed meeting, or in the alternative, the requested undertaking, we are instructed to commence proceedings forthwith in the Supreme Court of NSW for any and all appropriate relief, including damages, an injunction and costs…”

The Beth Din responded:

“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 defendants 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.

….

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

Baruhk’s emailed a letter noting the Beth Din had conducted enquiries in relation to the applicant/plaintiff and asked for “comprehensive particulars in relation to all such enquiries. Furthermore, it is also clear that you have had some engagement with the complainant directly. We request the immediate provision of all particulars relating to such communications, whether they be in writing or oral.

The Beth Din’s lawyers emailed Baruhk’s lawyer on February 28 2017: “We hereby are 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).

….

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.”

In his decision Justice Sackar wrote: “The Plaintiffs point to the number of emails, phone calls and other mobile communications which were “entirely unnecessary” for dealing with procedural matters, and some of which went beyond dealing with procedural matters such as giving advice to Mr Kuzecki as to how he should make his claim.

Mr Kuzecki’s email of 6 October 2016 alleging Mr Barukh had failed to reimburse him for ‘monies owed’ and taken his ‘half of a company which [he had] built,’ and secondly Rabbi Gutnick and Mr Kuzecki’s call on or around 24 November 2016 where Mr Kuzecki told Rabbi Gutnick his claim was worth $5 million. In respect of these two exceptions, the Defendants submit they do little more than describe the merits of Mr Kuzecki’s claim and is no more than what would ordinarily be contained in any.”

Justice Sackar wrote of the Beth Din: “This is an organisation that wishes, indeed demands, the respect and reverence from its parishioners and adherents, and yet appears to be a law unto itself.

In my view, for the reasons which follow, the conduct of the Beth Din in the Kuzecki commercial dispute displays either arrogant disregard of their own procedures and rules of natural justice, substantial ineptitude, or inexperience dealing with commercial disputes . I am satisfied that were the Beth Din’s affairs justiciable in this respect, there would be strong grounds for a finding of apprehension of bias.

However, as soon as it became apparent to Rabbi Ulman that Mr Kuzecki wanted to proceed with the Din Torah, Rabbi Ulman – as one of the three judges of the Sydney Beth Din who would determine the claim should Mr Kuzecki proceed – ought to have excused himself from the meeting, or made it clear to Mr Kuzecki that communicating with him would not be appropriate.

The string of communications between Mr Kuzecki and the Sydney Beth Din following this meeting, is, in my view, entirely inappropriate for a religious body, or any body, which prides itself on adhering to the principles of natural justice.

In response to being asked whether he had at least five telephone conversations on separate occasions with Mr Kuzecki, Rabbi Gutnick responded “I have no idea” (T130/46-48). In my view, Rabbi Gutnick’s failure to recall the number of conversations he had with Mr Kuzecki speaks to not only the frequency of the conversations, but how unremarkable it was in Rabbi Gutnick’s mind to be talking over the phone to a party to a dispute he was meant to be adjudicating over, to the exclusion of the other party.

No attempt was made by Rabbi Gutnick or Ulman to refer Mr Kuzecki on to Rabbi Schlanger, and, as I have said, no attempt was made to refuse receipt of the emails or rebuke Mr Kuzecki for the continual communication. The acquiescence of the Beth Din in this regard, in my view, further heightens the suspicion they were receptive to receiving Mr Kuzecki’s representations without demur, however libellous of Mr Barukh they were.

The informal tone of the emails is, in my view, a further cause for concern. Rabbi Gutnick opens his email to Mr Kuzecki of 27 September 2017 by apologising for not giving his case “the proper attention it deserves”, while some months later Mr Kuzecki opens his email to Rabbi Gutnick of 19 December 2016 by thanking him “for all your support” (TB1, 220). In my view, such civilities, compounded by sign offs such as “All the best” (TB1, 186) or “Kol Tuv!”, is sufficient to at least cast suspicion on the ability of the Sydney Beth Din to determine the Kuzecki commercial dispute impartially.

On these grounds, if Mr Barukh did have a right of the kind in Christie, the principles of natural justice would clearly apply (being expressly endorsed by tenets of Halachic law), and I would have no hesitation in finding the Sydney Beth Din was in flagrant breach of these principles, and Mr Barukh would have clear grounds for declaratory relief. As I have noted however, this issue is beyond the jurisdiction of this Court and my findings are therefore purely academic.

Contempt

In my view, the email from the Sydney Beth Din of 29 December 2016, where the Beth Din for the first time threatens Mr Barukh with specific sanctions, does, beyond reasonable doubt, constitute conduct which places 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.

I am satisfied these threats were inherently calculated to exert pressure on Mr Barukh.

It seems to me wholly improper he be threatened with punishment because he disagrees from a philosophical stand point with the Beth Din’s jurisdiction.

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 the appropriate place for the determination of commercial disputes between Jews, or for that matter gentiles.

Justice Sackar’s conclusion:

I am not satisfied this Court has jurisdiction to intervene in the affairs of the Beth Din, despite it being clear in my view on the evidence the Beth Din has not afforded Mr Barukh natural justice.

However, on the question of contempt, in my view the Beth Din’s threat of sanctions directed at Mr Barukh, in the context of the 29 December email and the 28 February letter, is improper pressure which, as a matter of practical reality, has the tendency to interfere with the administration of justice by coercing Mr Barukh to accept the exclusive jurisdiction of the Beth Din and not resort to a civil court to achieve the same result. On these grounds, I am satisfied beyond reasonable doubt the Defendants are guilty of Charge 2 and 6.

I will hear the parties on the appropriate relief that should be granted in accordance with my decision, and any question of penalty. I will also hear the parties on the question of costs should the need arise.

Charge 2:

On 29 December 2016, you, in your capacities as representatives of the Sydney Beth Din, after having received further notification from the plaintiffs that they considered the dispute the subject of the Sydney Beth Summons [sic] 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 the second plaintiff:

“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 [the second plaintiff]…

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

He will not be counted to a minyan.

He will not be able to receive an aliyah to the Torah.

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 [the second plaintiff] 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.”

Charge 6:

On 28 February 2017, after the plaintiffs 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 the second plaintiff:

“…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…

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 first to fourth defendants) to Lazarus Legal Group (solicitors for the plaintiffs).

The letter of 28 February reasserts the authority of the Beth Din and again makes it abundantly plain that unless Mr Barukh complies with the orders to attend upon the Beth Din, religious sanctions would follow as per the 29 December email. True, the solicitors for the Beth Din indicated the Beth Din would cooperate with the Plaintiffs in obtaining an early hearing and further undertook, for the time being at least, religious sanctions would not be imposed.

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.

The failure to attend the Beth Din is, as I have already said, clearly to be understood in circumstances where it is asserted the Beth Din is the sole arbiter of any dispute between observant Jews. Whilst the letter of 28 February could not be construed as maintaining the threat by reason of Mr Barukh having commenced these proceedings, the clear intention on the part of the Beth Din to proceed against him by the imposition of sanctions for failing to attend upon them is what is continued as a threat and is merely suspended until the proceedings are determined in the Court.

In my view this maintenance of conduct has the tendency to interfere with the administration of justice. The threats continue to maintain the assertion the Plaintiff 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.

Lawyers for the Beth Din have released a statement saying:

Live Group Pty Ltd & Anor v Rabbi Yehoram Ulman & Ors

Supreme Court of New South Wales Proceedings No. 2017/42068

We are of the opinion his honour erred both in law in relation to the issue of contempt and also in relation to his assessment of the behaviour of the Beth Din, an assessment he admitted was not within his jurisdiction to make.  His suggestion of apprehended bias and a denial of natural justice on the part of the Dayanim in our view was wrong and did not take into account key evidence in relation to the procedures of the Beth Din and especially that the Dayanim had freely offered to recuse themselves.  It is our intention to place these matters before the court of appeal.