New South Wales Supreme Court CITATION : Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 714 HEARING DATE(S) : 30/07/03 JUDGMENT DATE : 30 July 2003 JURISDICTION: Equity Division ' JUDGMENT OF : Young CJ in Eq DECISION : Orders made. Brook v Evans (1860) 29 LJ Ch 616 Cawood v Green (NSW C/A - 26.6.1974) CASES CITED : Hillfinch Property Ltd v Newark Investments - The Times, 1 July 1981 Mackett v Herne Bay Commissioners (1876) 24 WR 845 Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 615 Yeshiva Properties No 1 Pty Limited Yeshiva Properties No 2 Pty Limited Yeshiva Properties No 3 Pty Limited PARTIES : Yeshiva Properties No 4 Pty Limited Yeshiva Properties No 5 Pty Limited Yeshiva Properties No 6 Pty Limited (P) Lubavitch Mazal Pty Limited (D) FILE NUMBER(S) : SC 5361/02 COUNSEL : P L G Brereton SC and S J Burchett (P) B R McClintock SC and I D Martindale (D) SOLICITORS : McCabe Terrill (P) Schetzer Brott & Appel (Melbourne) (D) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG CJ in EQ Wednesday 30 July 2003 5361/02 – YESHIVA PROPERTIES NO 1 PTY LTD v LUBAVITCH MAZAL PTY LTD JUDGMENT 1 HIS HONOUR: This is an application for an interlocutory injunction against the losing party in litigation which I thought was decided by my judgment on 8 July 2003, Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 615. 2 Although the plaintiffs in that case had clearly a very weak case, I did spend 44 pages very thoroughly going through the evidence and making a decision that there was virtually no merit whatsoever in any of the allegations which the plaintiffs put. However, I did reserve for comment that there were some religious matters between Rabbi Feldman personally and Rabbi Gutnick personally which may be properly the subject of proceedings before a Rabbinical Court, but I also said that it seemed to me that Rabbi Feldman had deliberated intermingled those issues with the issues that were properly before this Court and I rejected that manoeuvre. 3 Following my decision, I dissolved various interlocutory injunctions or consent undertakings, which had the effect of freezing proceedings before the Rabbinical Court, on the basis that I was functus officio and that ordinarily interlocutory undertakings come to an end when the final decision in the litigation is handed down, and furthermore I just did not imagine that highly principled religious leaders of an organisation would do anything else but respect the letter and the spirit of the decision of the Supreme Court of New South Wales to which they had both submitted. 4 However, since the judgment was given there has been a reactivation of the matters before the Rabbinical Court and there has also been a deliberate press campaign to emphasise matters in the judgment, and in the hearing before me, which may well give to the uninitiated person who reads a newspaper, in the sense of who runs may read, quite the contrary impression to what that judgment really held. 5 There was also, it would seem, although I do not have to make any finding, and I do not make any finding, that the reactivation of the Rabbinical process, which has resulted, it would seem, in the excommunication of Rabbi Gutnick was at the instigation of the plaintiffs. 6 It is in those circumstances that the defendant seeks an interlocutory injunction to prevent there being any further conduct and indeed to require the plaintiffs to take all possible steps to put an end to that excommunication. 7 I was not, with respect, particularly impressed in the way in which the defendant's case was framed, but the matter having been brought to the attention of the court, the court feels extreme displeasure at the way in which its confidence that it was dealing with people of high principle was possibly misplaced, and the court needs to make orders which will maintain the dignity of the court and to prevent ordinary members of the public coming to the view, through overemphasis of certain aspects of the case, which is not a view they would get if they had a fair report. 8 However, there are a lot of technical problems in the way of making an order today. Mr Brereton SC, who appeared with Mr Burchett for the plaintiffs, has put that as contempt is at least a quasi criminal matter it is not appropriate for the court to go through the exercise that it normally goes through in interlocutory hearings of working out whether there is an arguable case, and whether the balance of convenience favours the grant or refusal of an injunction, as any such injunction is, in one sense, punishment and really there only should be punishment after the contempt has been established. 9 Although the matter came on at relatively short notice, counsel was not able to refer me to any case where an interlocutory injunction had been granted to restrain a contempt after final judgment in proceedings. Though it would appear that Brook v Evans (1860) 29 LJ Ch 616 was such an application, it was refused on the merits. 10 Certainly Kerr on Injunctions, 7th ed, p 624, seems to indicate that it is not an ordinary remedy for an interlocutory injunction to be granted in such a case. It has been argued that in any event an injunction is never an appropriate remedy in a contempt case. 11 I do not consider that that proposition is correct, at least in its widest form, as cases such as Cawood v Green NSW Court of Appeal, 26.6.1974, unreported and Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89, which were vastly different cases, were each illustrations of injunctions being given in appropriate cases. 12 I very much wonder whether what the process really should be is for the court to issue a warrant under Pt 5 r 12 of the Supreme Court Rules 1970, because an alleged contemnor is a contemnor, and then decide whether to grant bail and conditions can be put on the bail to make sure there is no recurrence of the matter complained of. 13 I am very reluctant to do that today for two principal reasons; one, I do not think that that was put at the forefront of the applicant's argument, and it would be inappropriate in matters concerning the liberty of the subject to make such an order, unless it was fairly open for debate; and secondly, the applicant has very gallantly said, though it causes problems with the court, that he does not want Rabbi Feldman to actually be imprisoned. 14 However, as it would not appear that any of the plaintiffs have any money, probably if there is going to be any conviction for contempt of court, whether Rabbi Gutnick seeks it or not, a custodial sentence will be the only possible outcome, and so the question of bail would be an important one. 15 If the matter could be prepared for hearing quickly then I would consider that it might be appropriate to stop at this point and merely fix it for hearing. However, there is no guarantee that that will be the case. 16 Contempt proceedings are basically to preserve the status of the court. In a note I put in (1993) 67 ALJ 487 I discussed a number of cases there on the present problem before the court and I would like some time to think more deeply about those. I also am a little concerned that there may be other cases in the area of interlocutory injunction outside England and Australia that might be found on more intent research. I also wish to consider the point made by Mr Brereton that where there are religious beliefs which intersect with secular rights the court should, as a general rule, keep out of the area. Cases such as Mackett v Herne Bay Commissioners (1876) 24 WR 845 tend to suggest that that proposition is not completely correct, but I would need to do further research. 17 I also note that Mr Brereton referred to Hillfinch Property Ltd v Newark Investments which is only in The Times of 1 July 1981 and is noted in Borrie and Lowe on Contempt 3rd ed, p 415, 2nd ed p 299 in a different form to The Times report, and it is probably appropriate that one consult the full judgment if it is available. 18 There are also other matters that concern me, one of which is that in the law of privilege the fact that a person would suffer an ecclesiastical penalty if compelled to answer a question is not, so far as I remember it, a sufficient foundation for a claim of privilege, and I wish to look at that material also. 19 Accordingly, having made it abundantly clear that if the court should find in the ultimate that there has been such a press campaign as would lead a member of the public, who reads his or her newspaper on the train or bus, to come to the view that this court has held other than it ought to have held, that may well be held to be a contempt of court, which the court would need to punish to maintain its dignity and reputation, notwithstanding any gallantry by the other side. 20 I have not, of course, come to any conclusion on the matter and it may be that I will not even be the judge who conducts the final hearing, but I want to make it abundantly clear to anyone who might think otherwise, that one cannot manoeuvre, one cannot do things indirectly, one cannot mock the court by having a press release which one can say that journalists misunderstood. If as a result of someone's press campaign the public get the wrong impression, and the court's dignity is affected, then it seems to me that the matter can be finally argued at the end of this case that that would be a very serious contempt of court. The defendant says that that is what has happened here and that will be a matter which will have to be adjudicated in due course. 21 Thus, all I will do at the moment is reserve my decision. However, I should make it plain that if it is brought to the attention of the court that there has been some other activity of a similar nature to what has occurred already, the probabilities will be that I, or some over judge in this Division, will issue a warrant and work out bail conditions. However, I trust that that will not happen so I merely reserve my decision on this motion and if anyone wants me to make directions as to the hearing of the final application I will do so. [Short minutes produced] 22 I list the matter for hearing on 25 and 26 August 2003 before a judge to be announced. I grant liberty to apply to the Chief Judge in Equity on two days' notice. I make orders 1 to 7 in the short minutes of order. ********************** Last Modified: 08/12/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.