A dispute between Live Group and SalesPort arose, and Live Group terminated the contract. Mr Kuzecki sought to invoke the jurisdiction of the Beth Din, and requested a Din Torah, being a final adjudication of the dispute pursuant to Jewish law. The Beth Din issued a summons to Mr Barukh, who wrote back stating that he did not intend to appear, that the Beth Din was not the appropriate forum to deal with the dispute, and that any claim should be brought before a civil court in Australia.
What followed was a series of emails and letters between various Rabbis and Mr Barukh’s solicitors. During this correspondence, it was stated that if Mr Barukh failed to submit to the jurisdiction of the Beth Din then he would be subject to various religious sanctions. Mr Barukh commenced proceedings in the Supreme Court of New South Wales against four Rabbis (being the three judges and the registrar of the Beth Din) seeking injunctions preventing the Beth Din from imposing religious sanctions for failing to submit to its jurisdiction, and seeking orders that the members of the Beth Din are in contempt of court.
The other is Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd, where Young CJ in Eq similarly found that putting pressure on a potential litigant of religious excommunication if litigation is pursued may be contempt of court, even where the pressure was put on the litigant before the proceedings commenced.
The principle can be neatly summarised from the words of Judge Sir James Wilde from the old case of In re Mulock  164 ER 1407:
“From the pressure of this threat [the plaintiff] seeks protection, and [they] claim a right to approach this court free from all restrain or intimidation. It is a right that belongs to all suitors … No one can doubt that the very offering of such a threat to a suitor in this Court, for such a purpose, is in itself, and quite independently of its subsequent fulfillment, a contempt of Court.”That is, a threat of a sanction, religious or otherwise, may amount to improper pressure (even if it is something that someone is legally allowed to do) if the threat is aimed at stopping someone from exercising their right to petition a civil court for relief.
The defendants also argued that they were not threatening religious sanctions for going to a civil court (in fact, Mr Barukh was not even seeking to bring proceedings at the time), rather the threats were aimed at securing his participation in the religious court, being the Beth Din.
Sakar J did not accept this distinction, calling it “sophistry” and “disingenuous”. This is because Mr Barukh, by necessary implication, would have to waive his right to be heard in a secular court by agreeing to have his case heard by the Beth Din. Therefore, whilst the Beth Din may say that the sanctions flow from Mr Barukh’s failure to participate, the “practical reality is the sanctions inevitably result from attending a secular court without the permission of the Beth Din”.
His Honour went on to find the members of the Beth Din guilty of various charges of contempt for their correspondence with Mr Barukh. His Honour stated that:
“Quite simply, to threaten reprisal … 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 the 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.”On the question of religious freedom, his Honour went on to say that his finding:
“is not a restriction on 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.”The Supreme Court imposed fines between $20,000 and $10,000 to the various members of the Beth Din. They appealed to the Court of Appeal. The Court of Appeal, by majority (Bathurst CJ and Beazley P), upheld the findings of contempt, but reduced the fines to between $7,500 and $2,500.
The plurality agreed that the Beth Din’s conduct amounted to improper pressure on Mr Barukh. The Beth Din also sought to rely on the dispute resolution clause in the contract between SalesPort and Live Group, however the Court found that this clause did not bind the parties to submit to the Beth Din, and was not an agreement to have the dispute determined in accordance with Jewish law.
We all have a right to approach a civil court for relief, and if someone (being a religious body or not) seeks to impose a sanction for doing so, this will be contempt of Court. Parties to commercial contracts can, and often do, seek a variety of different ways to resolve their disputes. Depending on those involved, that may include a reliance on theological principles. However, when someone wants to bring that commercial dispute into the domain of the Courts, it is improper to pressure them out of doing so on religious grounds.