Benhayon v Rockett

[2016] NSWSC 1210

Supreme Court

New South Wales

Medium Neutral Citation:	Benhayon v Rockett [2016] NSWSC 1210
Hearing dates:	6 May 2016
Decision date:	30 August 2016
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Plaintiff’s application (to have contextual truth defence struck out) dismissed
Catchwords:	DEFAMATION – defences – application to have defence of contextual truth struck out – whether contextual imputations capable of being conveyed – same caution to be exercised as when ruling on capacity in respect of a plaintiff’s imputation
Legislation Cited:	Defamation Act 2005 (NSW), s 26
Cases Cited:	Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165; [2002] NSWCA 41 Smith v ADVFN Plc [2008] EWHC 1797 (QB) Singleton v Ffrench (1986) 5 NSWLR 425
Category:	Procedural and other rulings
Parties:	Serge Isaac Benhayon (plaintiff) Esther Mary Rockett (defendant)
Representation:	Counsel: KP Smark SC (plaintiff) M Richardson (defendant)   Solicitors: Universal Law Cameron Bell & Associates (plaintiff) Goldsmiths Lawyers (defendant)
File Number(s):	2015/329298

Judgment

1. HER HONOUR: These are proceedings for defamation arising out of the publication of a weblog. The blog concerns the practices of “Universal Medicine”, which is depicted by the author as a religious cult. The plaintiff, Mr Serge Benhayon, is identified as the leader of the alleged cult. The defendant is the author of the blog, Ms Esther Rockett. Ms Rockett openly describes Mr Benhayon as a sexual predator, saying “I’ve seen him in action, as have plenty of others”. Amongst her complaints about him is the accusation that, in 2005, he subjected her to “a sleazy ovarian reading” under the guise of “Esoteric healing”. The content of the blog suggests the existence of an ongoing, robust exchange between Ms Rockett and people she describes as cult members or Mr Benhayon’s “sexual abuse apologists”.

2. In addition to the main blog, Mr Benhayon sues on two related comments on the blog and a tweet posted on Twitter. The current particulars allege publication to nine people, mostly residents of Goonellabah (a small town in Northern New South Wales) and Queensland.

3. The imputations specified by the plaintiff are principally imputations of indecent acts and predatory conduct. Ms Rockett has pleaded defences of truth to some but not all of those imputations. She has also pleaded the defence of contextual truth under s 26 of the Defamation Act 2005 (NSW). [1] The proposed contextual imputations are considerably broader than those complained of by the plaintiff, expanding the scope of the truth defence into areas concerning Mr Benhayon’s honesty and mental state and the validity of the healing services promoted by Universal Medicine. Mr Benhayon seeks to have the contextual truth defence struck out. This judgment determines that application.

   1. Defence filed 29 February 2016, para 14.

4. Following discussions between the parties, the argument proceeded by reference to a schedule of proposed amended contextual imputations on the understanding that the onus remains on the plaintiff to demonstrate that a pleading in that form would be liable to be struck out. [2]

   2. T2.19, 6 May 2016.

5. Leaving aside a small number of objections as to the form of the proposed contextual imputations and a potential dispute as to the adequacy of the particulars (postponed for argument on a later date if necessary), the principal objection to the contextual truth defence is that the proposed contextual imputations are not capable of arising from the first matter complained of (the blog). The primary submission put in support of that contention is that the blog is concerned with the conduct of others (the so-called apologists) and is not capable of conveying the proposed contextual imputations “of and concerning the plaintiff”.

6. It is well established that, in the case of an application by a defendant for a ruling that a plaintiff’s imputation is not capable of arising from the matter complained of, the court must exercise “great caution”: Favell v Queensland Newspapers Pty Ltd. [3] The test is whether the challenged imputation “could reasonably be found by a jury”. [4] That has been described as “an exercise in generosity not parsimony”. [5]

   3. (2005) 221 ALR 186; [2005] HCA 52 at [6].

   4. Favell at [14] to [15]; recently approved as the test adopted in this State in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [138] per McColl JA; Bathurst CJ and Gleeson JA agreeing at [1] and [191] respectively.

   5. Corby at [135].

7. There is no warrant for the application of any lower threshold in the case of an application for a ruling in respect of a contextual imputation. In Corby at [137], McColl JA said that the focus should be on the fact that the decision deprives the plaintiff of the opportunity to present his or her case to the jury. That consideration is no less relevant to a defendant’s defence. Mr Smark SC, who appears for the plaintiff, noted that the particulars in support of the contextual truth defence are far-ranging and will inevitably greatly expand the scope of the hearing and the scope of interlocutory steps, including preparation for hearing. That is an argument for determining the current dispute in advance of the hearing but is not to be mistaken for the applicable test. As also acknowledged by Mr Smark (with respect, correctly), if the contextual imputation truly arises (the inquiry at this stage being whether it is reasonably capable of satisfying the requirements of s 26) then that is simply a feature of the litigation.

8. The only other matter to be noted as to the applicable principles is Mr Smark’s reliance on the decision of Eady J in Smith v ADVFN Plc [6] regarding the nature of “bulletin board communications” (akin to blogs). His Honour said (at [14]):

Particular characteristics which I should have in mind are that they are read by relatively few people, most of whom will share an interest in the subject-matter; they are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or “give and take”.

6. [2008] EWHC 1797 (QB)

9. Justice Eady expressed the view that communications of that kind are “much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual, more permanent kind of communications found in libel actions”. His Honour said (at [17]):

It is this analogy with slander which led me in my ruling of 12 May to refer to “mere vulgar abuse”, which used to be discussed quite often in the heyday of slander actions. It is not so much a defence that is unique to slander as an aspect of interpreting the meaning of words. From the context of casual conversations, one can often tell that a remark is not to be taken literally or seriously and is rather to be construed merely as abuse. That is less common in the case of more permanent written communication, although it is by no means unknown. But in the case of a bulletin board thread it is often obvious to casual observers that people are just saying the first thing that comes into their heads and reacting in the heat of the moment. The remarks are often not intended, or to be taken, as serious.

10. The plaintiff’s reliance on that thoughtful analysis rings hollow in the present context; I doubt whether he would invoke the same approach in the determination as to whether his own imputations are conveyed. The blog makes serious accusations against Mr Benhayon and Universal Medicine, backed by cogent (if at times extravagantly expressed) argument. I do not accept that the blog would be understood by the ordinary, reasonable reader as in the nature of mere vulgar abuse. It is plainly intended to be understood part of a vigorous, determined campaign.

11. The main blogsite operated by Ms Rockett is called “Universal Medicine Exposed”. The blog sued on as the first matter complained of appeared under the heading “Universal Medicine’s sexual apologism hits a crescendo”.

12. Although objection is taken to the whole of the contextual truth defence, the plaintiff conceded during argument that the matter complained of is capable of conveying contextual imputation (i), as follows:

The plaintiff engages in misleading conduct in promoting the healing services offered by Universal Medicine.

13. Accordingly, no ruling is required as to that imputation. Contextual imputation (ii) is:

The plaintiff knowingly makes false claims about healing that cause harm to others.

14. Mr Smark submitted that the blog makes allegations only about other people and not about the plaintiff. He submitted that the blog does not support an imputation that the plaintiff makes claims of any nature at all. I do not accept that submission. The whole tenor of the article is to characterise Universal Medicine as a cult. Mr Benhayon is plainly depicted as the cult leader and the promoter of the “Esoteric healing” practices complained of.

15. It may be accepted that the principal focus of this particular blog is an attack on the most recent statements of the so-called apologists but that aspect must be considered in context. It is clear from a reading of the blog as a whole that it comes as one contribution to an ongoing exchange. Much of the blog is responsive to previous alleged attacks on Ms Rockett’s credibility.

16. The blog opens as follows:

Complementary health conglomerate and religion, Universal Medicine, has launched what could be its greatest fiasco with an hysteria-ridden public promotion of the molestation they call “healing”. UM’s Esoteric lynch mob, led by propaganda drill sergeant, Alison Greig, label our concerns about the organisation’s predatory behaviours and our questions about the welfare of the most vulnerable members as “sexualising” and “dangerous to children”. The UM *Facts* battalion then justifies inappropriate touching with anatomical confusion, New Age quackery and testimonials from Serge Benhayon’s young female houseguests.

I’ve blogged before that I won’t give oxygen to the Universal Medicine cult’s far-fetched fictitious *facts* site, but the latest post is a gift to our exposure. It’s a perfect demonstration of the mix of dishonesty, delusion, stupidity, abuse apologism, bullying and exploitation that screams “cult”. Alison and a couple of hundred self-loving investors have done a magnificent job of validating our concerns about the dangers of Serge and his venomous Bride army.

17. A later passage in the blog, headed “Esoteric Anatomy”, includes photographs from a Universal Medicine “workshop manual” which Ms Rockett says she has blogged previously. The context suggests that her posting of those photographs prompted an exchange with proponents of Universal Medicine as to what they depict. In the blog, Ms Rockett records (and then responds to) comments seeking to discredit her claims against Universal Medicine and Serge Benhayon.

18. Part of Ms Rockett’s response to her critics is to blog further photographs she says depict Mr Benhayon demonstrating his healing services. In one, a man is shown placing his hands above and below a (clothed) female’s breast with the following explanation:

8 to 10 years

This is the period of a new world when the child explores its new perceptions. Look for hard or sensitive reactions. Feel the emotional experience.

19. A second photograph (apparently of the same male and female) shows the man’s hands closing in on the breast; one is directly on it and one is directly above it. The explanation:

13 to 18 years

In this period the teenager will live according to what was successful in their 8 to 12 year bracket. This may be obscure and vary far from who they really are. First developments of angst are experienced.

20. Two further photographs appear under the heading “transmuting sadness”, depicting a male pressing his right hand firmly against the lower bottom of a female lying face-down on a table (clothed). The photograph carries the following explanation:

The sacrum is the storehouse of sadness from the heart. The practitioner applies this hand technique to help release the sadness back up into the heart, where it can be dealt with, ie its vibration is raised and the sadness transmuted.

21. A further photograph showing the same technique but also showing the man’s left hand pressed against the back of the girl’s neck explains:

In this picture we help connect the sadness of the sacrum into the sub-heart chakra. This takes the load off the main heart chakra. The process of transmutation here occurs faster as it is the main role of this sub-chakra.

22. In the blog, Ms Rockett acknowledges, as evidently alleged against her by Universal Medicine or its proponents, that she may have misidentified the woman in the photographs (in an earlier blog). She continues:

So if it isn’t Natalie, who is it? How old was that young girl in 2004 when the photo was taken? And whatever her age, why is it necessary to press a hand to someone’s anus to *transmute sadness*? How does that work, Dr Szramka? Eunice Mimford? Why is it necessary for Serge Benhayon and his legion of unqualified “healers” to touch erogenous zones at all?

23. Those passages plainly suggest that the methods of healing demonstrated by the plaintiff as depicted in the workshop manual are contrived for a more sinister purpose. In my view, the imputation that the plaintiff knowingly makes false claims about healing that cause harm to others is well within the boundaries of the possible range of meanings conveyed by the first matter complained of. [7]

    7. cf Corby at [133].

24. Contextual imputation (iii) is “the plaintiff is delusional”. The plaintiff objects to that imputation as to both form and capacity. Mr Smark submitted that the term “delusional” is impermissibly vague, having a range of possible meanings he described as “almost limitless”.

25. It is well established that an ambiguous imputation is bad in form and must be addressed by amendment or else a ruling of the court. [8] However, it is equally well established that the imputations must be considered in the context of the matter complained of. [9] Mr Richardson, who appears for the defendant, acknowledged that the term “delusional” has a range of meanings but submitted that the different senses in which the term might be used are not inconsistent. He further submitted that the particulars of truth appended to the defence make perfectly plain the case to be put at trial.

    8. Singleton v Ffrench (1986) 5 NSWLR 425 at 433-434.

    9. Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165; [2002] NSWCA 41 at [27] per Mason P, Wood CJ at CL agreeing at [31]; at [43] per Young CJ in Eq.

26. The particulars include reliance upon statements made by Mr Benhayon in a book he authored in 2011 titled “Esoteric teachings and Revelations”. Ms Rockett will contend at the hearing that those statements have no scientific merit. The claims made by Mr Benhayon in the book include the following (particulars (vi) to (ix); (ix) is a repeat of (vii)):

vi.   Words to the effect that breast and gynaecological diseases, including breast and ovarian cancers, result from “mail energy”, and that women’s efforts to achieve “equality” and “get through what’s demanded of them” has contributed to a global proliferation of such disorders;

vii.   “In modern society and as a result of a more male role for women, the tendency to self-nurture has been lost. Women have become at best great nurturers to others. This is why breast cancer is so prolific”;

viii.   “Women have achieved equality, in some measure, by ‘out-maleing’ the man. Therefore, they too, are in the excessiveness of male energy. This why there are so many cases of ovarian cancer, fibroids, cysts, endometriosis, breast cancer, etc…Become racy or driven and you have asked the male energy to dominate your body. Looking like a woman but being run by a male energy is not the whole and true you …will women stop and listen to this teaching or will breast and ovarian cancer … need to get so bad that they are forced to pay attention to it?”

27. Separately, Ms Rockett relies upon the content of a book authored by Mr Benhayon in 2009 titled “The Living Sutras of the Hierarchy” which, according to the particulars, makes the following claims:

The book was authored via an “impress” channelled to Mr Benhayon by an “ascended hierarchy” of beings that had once been incarnated as Leonardo Da Vinci, Yeshua (Jesus Christ), Magdelena, the ancient King Imhotep, Plato, Pythagoras and Nostradamus who “work in and with Serge”.

28. The particulars continue in similar vein. One of the claims in the 2009 book is that bipolar disorder is “heightened by pranic energy in the pituitary gland” and that psychosis is “a heightened pranic activity in the nervous system”; the book asks “when will a psychiatrist finally understand and then actually publicly claim that all schizophrenia is caused by spiritual possession” (the implication being that current psychiatry wrongly holds, to the contrary, that all belief in spiritual possession is caused by schizophrenia).

29. I accept, as submitted by Mr Richardson, that the practices and beliefs identified in the particulars make plain that the defendant does not resile from the use of the term “delusional” in the imputation as referring to a person who holds a firm belief in something that is plainly not true. Understood in the context of the matter complained of, I do not think the imputation is ambiguous.

30. As to capacity, the plaintiff rested on the submission that the first matter complained of does not make claims about him (as opposed to others). For the reasons already explained, I do not accept that submission.

31. Contextual imputation (iv) is:

The plaintiff as the leader of Universal Medicine exploits the followers of that group through his false and harmful teachings.

32. The burden of the objection to imputation (iv) was that, to the extent that the article conveys the notion of exploitation, it is exploitation through “touch”. Mr Smark submitted that the blog does not convey any imputation of exploitation through “false and harmful teachings”. Mr Smark questioned whether the matter complained of conveys any sense of the use of teaching to exploit followers (by contrast with strong allegations in the article as to the plaintiff’s conduct).

33. I do not accept that submission. The matter complained of is replete with references to the plaintiff’s teachings and plainly capable of conveying the meaning that those teachings were false and harmful and that the plaintiff exploited his followers through those teachings.

34. Contextual imputation (v) is that the plaintiff is dishonest. As with a number of the earlier contextual imputations, the principal objection was that the allegations in the matter complained of are directed not at the plaintiff but at the other people referred to. Mr Smark submitted that, insofar as it is directed at the plaintiff, the “very clear target” of the blog is the plaintiff’s conduct and that it is not directed to the truth or falsity of anything he says. I do not accept that submission. For the reasons already considered, in my view the matter complained of is plainly capable of carrying the imputation that the plaintiff is dishonest.

35. Contextual imputation (vi) is:

The plaintiff is the leader of Universal Medicine, a group which to his knowledge preys on cancer patients.

36. As with a number of the other imputations, the burden of the objection was that the matter complained of is incapable of attributing the plaintiff with the knowledge referred to in the imputation. I would reject that submission, for the substantially the same reasons as those explained in respect of imputation (iii) above.

37. Contextual imputation (vii) was brought forward in the following terms:

The plaintiff engaged in inappropriate conduct towards women.

38. In response to an objection as to the potentially broad range of conduct to which the imputation could refer, Mr Richardson clarified the imputation so as to read “the plaintiff engages in inappropriate touching of women”. The plaintiff did not object to a contextual imputation amended in those terms.

39. I am satisfied that each of the proposed contextual imputations (as now propounded) meets the requirement of specificity and is reasonably capable of arising from the first matter complained of. For those reasons, the plaintiff’s application is dismissed.

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Endnotes

Decision last updated: 14 December 2018