Jeremy Spinak was a unifier
January 4, 2019 by
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Jeremy Spinak was a unifier. The last thing he would have wanted is to use his funeral as a launching pad for communal arguments. He is in the world of truth and we are thankfully in the world of rectification…writes Yankel Koncepolski.
Yankel Koncepolski
The Talmud relates in more than one place ( Berachot et al ) that
“ תלמידי חכמים מרבים שלום בעולם “, which translated means “Torah Sages
increase the level of peace in the world “.
Therefore, when the opposite of peace is recurring in a Jewish Community like Sydney , we have the Talmudic proof, that the cause of the lack of peace, does not emanate from Torah sages.
For the health of the Sydney Jewish community, I believe the following clarification is required.
It is encumbent on those trying to sincerely defend the honour of Hashem’s Torah, to understand that it is notthe Torah with whom the Secular Court and the Jewish community is expressing its dissatisfaction, but with the Rabbis of the Sydney Beth Din, and with the Beth Dins attempt to convince everyone, that their actions and the Torah’s instructions, are one and the same.
Those very few Rabbis that have made public statements in Jwire supporting the Beth Dins actions, are in my view, bringing the opposite of honour to the Torah.
The history of the Sydney Beth Din was laid out by Sackar J in the following terms:
- The Sydney Beth Din appears to have been established in 1905, following the arrival from the United Kingdom of Rabbi Francis Lyon Cohen in Australia. Minutes of the initial appointment of the Sydney Beth Din were made, although they are not entirely legible (TB1, 174).
- However, the “Sydney Beth Din” appears to have been registered on 28 October 2005, with the Sydney Talmudical College Association being the original holder of that Business Name. From 27 April 2006 onwards the holder type changed to a partnership between RaymondApple, Moshe David Gutnick, Jeremy Lawrence, David Rogut and Yoram Ulman (RB3 at [14]-[15]; TB1, 131-133) .
- In 2006, according to Rabbi Gutnick, the Sydney Beth Din’s jurisdiction was challenged by a defendant who refused to adhere to a Beth Din summons. Rabbi Ezra Bastri, the Head of the Jerusalem Rabbinic High Court, ruled and resolved the Sydney Beth Din was considered the fixed Beth Din of Sydney and anyone who attempted to undermine its authority should be sanctioned by the Sydney Beth Din (RG1 [49]).
- As at 1 January 2015, the ASIC records indicate only Rabbi Gutnick and Rabbi Ulman are the partners of the Sydney Beth Din (TB1, 134-137).”
The Sydney Beth Din therefore in effect comprises only two Rabbis in Sydney”
It pains me to have to refer to a secular court ruling in order to bring true honour to Hashem’s Torah.
J Sackar Judgement: Barukh vs SBD
The written judgement against the Sydney Beth Din ( SBD ) Rabbis, details specific actions of the Rabbis [ much of which the Rabbis confirmed in court ]
a) Meeting face to face with the Claimant, not in the presence of the accused , in the lobby of the Ramada Hotel ( Clause 211 of J Sackar’s Judgement)
b) listening to the claimant’s grievances against his ex partner without the ex partner being present ( Clauses 37, 61, 207 , 217 and 226 of J Sackars judgement )
c) Demonstrating a lack of Natural Justice and a resulting Apprehended bias ( Clauses 209,210 )
d) operating as a ‘business’ partnership of two Rabbis, without the oversight of the Jewish community (Clause 7 & Clause 205 )
e) “demands the respect and reverence from its parishioners and adherents, and yet appears to be a law unto itself ( Clause 205 of
Judgement ).
It is these improprieties that led the Judge to form his view that the 2 Rabbis of the SBD we’re guilty of apprehended bias, and the propriety of the imposed Jewish religious sanctions ( Siruv ) on the summonsed individual.
However it is the Torah Laws
that were contravened, and I believe we as Jews must be informed of what our laws say. Our laws are the origin of the common laws
The following laws of the Torah are what should have guided the Dayanim of the Sydney Beth Din.
JEWISH LAW
- The findings of a) and b) above, are expressly forbidden in Jewish Law ( Code of Jewish Law : Choshen Mishpat 17:5 )
Jewish Law forbids Dayanim who breach a) and b) , from acting any further in the case as Dayanim, unless the impending defendant does not mind that the Claimant raised his grievances with the Rabbis on his own ( See the Remo gloss on Choshen Mishpat 17:5 ).
In the judgement ( Clause … ) , the accused vis his Lawyer made it clear that he was very disturbed when he discovered that the Rabbis of the SBD had been hearing grievances without the accused being present.
As a result of the actions described in a) and b) , the two Rabbis of the SBD, were also Biblically disqualified ( Deuteronomy 1:16 and Choshen Mishpat 17:5 ) from issuing a Siruv ( religious sanction ) to appear before them .
Judge Sackar had the grace to state that the common law rules of apprehended bias are likely to have their origin in the Torah ( Clause 208 )
- d) and e) also require community introspection
In the Code of Jewish Law ( Choshen Mishpat 8:3 ) , it states
“ that the manner of the earlier Sages was to run away from appointments… until the people of the community and the Elders of the city , tightened the yoke upon the Sage and implored them to be their Dayanim.
The SBD ( self elected ) was clearly not established in the manner described in the above Jewish Law statute.
The next Jewish Law ( 8:4 ) states
“ it is forbidden for a Dayan to conduct himself in an arrogant manner … rather with humility.
What I am underscoring with the above citations is, that many Torah Law prohibitions were transgressed.
It is what happened before the issuance of the religious sanctions, which should be the focus.
If the Rabbis of the SBD had acted in accordance with Hashem’s Torah instructions, then it is highly unlikely this dispute would have ended up in
secular court (Exodus Mishpatim 1:3 ).
The result is, that the practical necessity in some cases of issuing religious sanctions, are now in jeopardy.
But importantly in the meantime, the community should urgently consider electing humble and expert Dayanim, who will bring peace between business disputants, peace between husbands and wives, peace between siblings and peace between organisations.
Yankel, a couple of minor points, and one major one: In a legal or semi-legal analysis of a case, it is important to be accurate. Hence my pedantry here.
(1) No sanctions were imposed here, and there was no siruv. It was the Beth Din’s threats of sanctions alone that got them convicted of contempt.
(2) For the second time, you are mixing up two distinct aspects of this case. Although Justice Sackar was satisfied that there was an issue of apprehended bias, it was not his view on that which led to his conclusion about the “propriety,” as you put it, of the BD’s threats. That conclusion was reached independently of the apprehended bias issue, which Sackar J considered (wrongly, in the view of the appeal judges) to be not justiciable. His conclusion about the BD’s threats was that they amounted to improper pressure on a potential litigant to abandon his common-law right to free and unhindered access to the civil courts (a right that the courts are duty bound to defend), and that they therefore constituted a (general) interference with the administration of justice, which is a contempt of court.
(3) On the issue of apprehension of bias, to which Sackar J devoted pages documenting and showing why he was abundantly satisfied that this was proven, you are quite right to criticise the three dayanim for the conduct giving rise to this. But that criticism must be based on solid grounds – on evidence and proper argument that is sustainable in the face of rigorous examination. To overstate the issue undermines the strength of your own argument.
The exact content of the discussion between Mr Kuzecki and Rabbi Ulman when they met in Israel is unclear. Certainly the meeting should have ended much sooner than it did. As soon as Kuzecki disclosed that he wished to bring a din Torah to the SBD, Rabbi Ulman should have given him the BD’s card with the contact details of the registrar and immediately excused himself. That probably did not happen, but it is far from certain that they discussed the substance of the case as opposed to the logistics of lodging it with the SBD. I am not saying that Rabbi Ulman’s behaviour was correct, even if the conversation was confined to the latter; on the contrary, it was extremely injudicious behaviour – in both senses of the word. I am just saying that it may not be a clear violation of Choshen Mishpat.
I say this, not of my own knowledge, for I have never studied Choshen Mishpat, but Rabbi Moshe Gutnick has, and he seems quite confident that they did not violate Choshen Mishpat. During a brief break in the appeal hearing, I got the chance to challenge him personally about the propriety of the BD’s behaviour with regard to that meeting and also the subsequent extensive ex parte correspondence between Kuzecki and himself, plus the other rabbis. When I put this to him, he answered that they did not discuss the substance of the case, just the arranging of it (which seems to be borne out by the emails quoted in the judgment). I then said, “But you have a registrar for that; you should use him,” to which he responded that there is no other way of doing it. That last statement is clearly wrong and untenable, and the BD’s behaviour was indeed reprehensible, but possibly not for the reasons you gave. The correct reasons were identified by Sackar J and I will have more to say about that aspect of the case another day.
I think the title is misleading.
Anyway, on the topic of Siruvim, it appears according to info found on mehadr.com and confirmed with my rabbi that many siruvim these days are invalid because the Beth Din (whether self-appointed or democratically elected, the latter being a Beth Din Kavuah) informs the recipient of the hazmana that the cost of the hearing will be shared! A Siruv can only be issued if the guy refused to attend a gratuitous hearing. Even a secular court doesn’t expect money from a defendant before hearing the case. An allowance to charge has its roots in Shulchan Aruch but only works when the two parties come voluntarily to be heard and don’t mind paying. [It’s also unfair to expect someone to come against his will and have to pay as well. He hasn’t lost the case and he’s already paying money! He will be forced to compromise to save money on the case!] He says that “מנהג” here is the same letters as גהנם. Now that’s important information! – but i doubt that happened in the case Mr Koncepolski is upset about.