MOND and Another v BERGER and Others

10 VR 534·Dodds-Streeton J
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10 VR 534
10 VR 534
MOND and Another v BERGER and Others Supreme Court of Victoria Dodds-Streeton J 5, 7, 10–12, 14, 17–19, 21, 24, 25, 27, 28 November, 2–5, 8, 9 December 2003, 23 February 2004 [2004] VSC 45 Arbitration and awards — Enforcement — Application to set aside partial award — Arbitrators — Conduct — Misconduct — Arbitration agreement referring dispute to rabbinical court — Governing law — Misconduct determined by Victorian law — Alleged collusion between arbitrators and witness — Procedural fairness — Cross-examination — Reasonable opportunity — Witness leaving jurisdiction before cross-examination completed — Arbitrators offering to arrange for witness to give evidence by video link or otherwise — Offer not taken up — Arbitrators not obliged to ensure attendance of witness — Bias — Award evidencing a basis for suspicion of impartiality — Arbitrators’ conduct evidencing prejudgment — One side to dispute abandoning participation in arbitration — Effect of breach of procedural fairness — Conduct said to be permissible under Jewish law — Whether divergence from common law — Public policy requiring common law to prevail — Misconduct by determination of matter not within arbitral reference — Reservation in final award of matters for future determination invalid — Misconduct by failure to determine a matter referred — Misconduct by delegation of arbitrators’ power — Commercial Arbitration Act 1984 (No 10167) ss 4, 36, 42, 43, 44.. Section 42 of the Commercial Arbitration Act 1984 conferred jurisdiction on the Supreme Court to set aside an arbitration award where an arbitrator had engaged in “misconduct” which was defined by s 4 of the Act as including corruption, fraud, partiality, bias and a breach of the rules of natural justice.Two brothers who were long-standing members of the Caulfield Hebrew Congregation Inc (“CHC”), an association incorporated pursuant to the Associations Incorporation Act 1981, became involved in a dispute with CHC arising out of their participation in a prayer group, the Or Chadash minyan (“Or Chadash”) which used and occupied a synagogue forming part of CHC’s complex of buildings. The dispute concerned eligibility for membership of CHC, the status of the Or Chadash group and CHC, and the relative authority of Rabbi A on behalf of CHC and Rabbi KR, the latter being the pastoral head of Or Chadash. Jewish law (“Halacha”) generally prohibited the issuing of proceedings by one Jew against another Jew in a secular court although a dispensation (“hetter”) could, in certain circumstances, be obtained from a rabbi and the prohibition did not apply to certain types of applications such as one for interlocutory relief. Having obtained an oral hetter (later confirmed in writing) from Rabbi KR, the first plaintiff applied successfully under the Associations Incorporation Act to a Magistrates’ Court for an interlocutory injunction preventing the holding of CHC’s annual general meeting until a rabbinical tribunal had determined the matters in dispute between the parties. Following that proceeding, but unaware that an oral hetter had been obtained, CHC took action to restrict the first plaintiff’s prayer rights and indications were given to him that he might be expelled or suspended from CHC. The first plaintiff, who had also received some anonymous hate mail following his Magistrates’ Court application, applied for and obtained further interlocutory order postponing the annual general meeting of CHC. The brothers and CHC agreed to refer their dispute to a rabbinical court for final and binding determination by an award enforceable under the Commercial Arbitration Act. The rabbinical court (“Din Torah”) was constituted by a tribunal (“zabla”) of three arbitrators (“dayanim”) which required each party to appoint one dayan (“borer”) and the two borerim together selected a third judge (“shalish”). The plaintiffs and the defendants respectively appointed Rabbi U and Rabbi B as their borerim who in turn appointed

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