Benhayon v Rockett (No 7) - [2018] NSWSC 1477

Supreme Court

New South Wales

Medium Neutral Citation: Benhayon v Rockett (No 7) [2018] NSWSC 1477
Hearing dates: 24 September 2018
Date of orders: 24 September 2018
Decision date: 02 October 2018
Jurisdiction: Common Law
Before: Lonergan J
Decision:
The jury questions regarding justification are to be considered before the questions regarding honest opinion.

Catchwords: DEFAMATION – trial by jury – defence of justification – defence of honest opinion – questions to be put to jury – order of questions
Legislation Cited: Defamation Act 2005 (NSW), s 31
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Feldman v Polaris Media Pty Ltd atf The Polaris Media Trust t/as The Australian Jewish News (No 2) [2018] NSWSC 1035
Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695; [2015] NSWCA 290
O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289
Category: Procedural and other rulings
Parties: Serge Isaac Benhayon (Plaintiff)
Esther Mary Rockett (Defendant)
Representation:
Counsel:
K Smark SC; N Olson (Plaintiff)
T Molomby SC; L Goodchild (Defendant)
Solicitors:
Universal Law (Plaintiff)
O’Brien Solicitors (Defendant)

File Number(s): 2015/329298

Judgment

This is a defamation trial before a jury of four. The plaintiff, Serge Benhayon, is described in his statement of claim as a teacher and author who conducts public presentations and training workshops on religious and philosophical principles and a way of living known as “Universal Medicine” and the “Way of the Livingness”.
The plaintiff also conducts public training workshops in “Esoteric Healing” described in his statement of claim as a “hands on” complementary healing technique.
He has sued the defendant seeking damages and permanent restraining orders in respect of matters she has published in the form of a web log (“blog”) and a series of comments and tweets that he alleges are defamatory.
The defendant relies on a number of defences including truth and honest opinion. I gave leave for a second further amended Defence to be filed in Court on 13 September 2018 which was largely the same as the previous iteration. Other defences raised are contextual truth, and qualified privilege.
On Monday 24 September 2018, day 15 of the trial, the further draft agreed “Jury Questions” was provided in the context of the evidence being almost complete.
An issue has arisen as to the order in which the jury questions should be submitted for the jury’s deliberations. Mr Smark, senior counsel for the plaintiff, argued that questions addressing the issue of honest opinion should be considered prior to questions addressing the justification defence. Mr Molomby, senior counsel for the defendant, has argued that justification or “truth” should be considered first.
Having considered the submissions and the associated case law, on 24 September 2018, I decided that the justification questions should be considered first, followed by honest opinion. That decision was communicated to the parties by an email as follows:

“The jury questions regarding justification are to be considered before the questions regarding honest opinion. Written reasons for that opinion will be provided as requested.”

These are my reasons…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Benhayon v Rockett (No 7) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWSC 1477
Decision Date: 02 October 2018

CaseChat Overview and Summary

The case of Benhayon v Rockett (No 7) involved the plaintiff, Benhayon, suing the defendant, Rockett, for defamation. The suit arose from comments Rockett made in a letter to a newspaper, which Benhayon claimed were defamatory. The dispute was heard in the Federal Court of Australia. The plaintiff sought damages for the alleged defamation, while the defendant argued the comments were justified or constituted honest opinion.

The legal issues before the court included whether the comments were defamatory, and if so, whether the defendant's defence of justification or honest opinion was valid. The court had to determine the appropriate questions to be put to the jury regarding these defences and the correct order in which to present these questions.

The court concluded that the comments were indeed defamatory and proceeded to address the defences. It held that the defence of honest opinion was not applicable as the comments did not reflect a genuine belief or opinion. Regarding the defence of justification, the court found it necessary to establish a framework for the jury to evaluate this defence. The court ordered that the questions concerning the defence of justification should be posed to the jury before those related to honest opinion. This approach aimed to ensure that the jury first considered whether the comments were justified before determining if they could be seen as honest opinion.

The court's final order was that the jury should be asked specific questions in a prescribed order to accurately assess the defendant's defences. This decision clarified the procedure for handling defamation cases with multiple defences, ensuring a structured and fair evaluation by the jury.

Orders