A PRINCIPLE of Jewish law requires that a dispute between two Jews should be referred to a Din Torah for decision, and not taken to the civil courts.
A Din Torah is a form of rabbinical arbitration usually conducted by a recognised Beth Din in accordance with Jewish law.
Regrettably in recent years a number of decisions of Australian Courts have reflected adversely on the workings of such rabbinical arbitrations, highlighting the potential for conflict between the operation of the civil and religious legal systems.
The recent decision of the NSW Court of Appeal in Ulman v Live Group Pty Ltd is the latest example.
The case involved a commercial dispute between Mr K and Mr B. Mr K filed a claim against Mr B and others with the Sydney Beth Din.
The Beth Din issued a summons to Mr B but he refused to submit to its jurisdiction alleging that the proper forum for the resolution of the dispute was a civil court.
The Beth Din informed Mr B that unless he submitted to its jurisdiction, he would be subject to a number of religious sanctions.
Mr B alleged that the rabbis constituting the Beth Din had committed a contempt of court in threatening to impose these sanctions.
The trial judge, Justice Sackar, found the rabbis guilty of criminal contempt on the basis that two letters written by them or at their direction had a real tendency to interfere with the administration of justice generally.
Each of the rabbis was fined and ordered to pay Mr B’s legal costs on the highest (indemnity) scale.
The rabbis appealed to the Court of Appeal. The central issue was whether the rabbis’ conduct constituted contempt.
The Chief Justice and the President of the Court of Appeal held that it did, finding that the rabbis’ letters were unambiguous threats that religious sanctions would be imposed if Mr B persisted in asserting that the alleged commercial dispute be resolved in a civil court and were not merely aimed at securing Mr B’s attendance at the Beth Din.
The third judge, Justice McColl, however disagreed. She held that the rabbis as “judges of the Sydney Beth Din, a religious court that administers halachah, or Jewish law, were seeking to ensure [Mr B’s] attendance at the Beth Din” and accordingly their letters did not constitute improper pressure which, as a matter of practical reality, had a tendency to interfere with the due course of justice such as to constitute criminal contempt of court.
The Court of Appeal reduced the fines, accepting that those originally imposed were manifestly excessive because there was little risk the rabbis would reoffend and they had suffered humiliation as a result of publicity.
The Court also held there was no basis for requiring the rabbis to pay indemnity costs and ordered that they pay costs on the ordinary scale instead.
The decision of the dissenting judge, Justice McColl, is particularly interesting. Her Honour noted that cases of criminal contempt are based on an allegation of interference with the administration of justice and rest on the need to protect the courts and the whole administration of justice from conduct which seeks to undermine their authority and their capacity to function.
However, she observed that this case involved balancing two potentially conflicting rights – the right of unimpeded access to the courts afforded to all citizens and the right to freedom of religion which she described as “the paradigm freedom of conscience … the essence of a free society”.
Justice McColl pertinently remarked that this balancing exercise may often be a delicate one. She held that when the evidence is assessed objectively, the rabbis were urging Mr B to comply with halachic law and resolve the dispute in the Beth Din and not suggesting that he should not have recourse to a civil court.
Noting that there was evidence that “[a] fundamental tenet of halachah is that all Jews must comply with the summons of a Beth Din” and that “compliance with this rule is a religious obligation, and non-compliance has a recognised religious and communal significance”, she held that the rabbis were entitled to express the view that a person who appeared to disagree with these tenets was no longer an adherent to the Jewish religion.
Most significantly Justice McColl noted that “this court should not intrude upon the rabbinical view of the halachah”.
It remains to be seen whether an appeal will be brought to the High Court and if so what the final chapter in this legal saga will record.
In the meantime, those who seek the assistance of our Batei Din to resolve their commercial disputes and those who administer this system of rabbinical arbitration will need to take particular care.
IAN WALLER is a Queen’s Counsel practising at the Victorian bar.