Supreme Court New South Wales Medium Neutral Citation: Benhayon v Rockett (No 4) [2018] NSWSC 1312 Hearing dates: 10, 17 August 2018 Decision date: 27 August 2018 Jurisdiction: Common Law Before: McCallum J Decision: Plaintiff's application to dispense with jury refused; subpoenas addressed to Riley Martin, Heath Gibney, Matthew Sutherland and Stephen Clark set aside; application by Universal College to produce redacted documents refused Catchwords: DEFAMATION – mode of trial – defendant electing for trial by jury – plaintiff seeking to dispense with jury on grounds of complexity and multiplicity of issues and volume of material to be considered – importance of role of juries in actions for defamation Legislation Cited: Civil Procedure Act 2005 (NSW), s 62(3) Defamation Act 2005 (NSW), s 21 Defamation Act 2005 (Qld), s 21 Uniform Civil Procedure Rules 2005 (NSW) r 31.23, Schedule 7 Cases Cited: Benhayon v Rockett (No 2) [2017] NSWSC 808 Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315; [2011] NSWCA 246 Combined Excavations and Supplies v Bowis [2000] NSWCA 298 Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303 Ra v Nationwide News Pty Ltd (2009) 182 FCR 148; [2009] FCA 1308 Wagner v Harbour Radio Pty Ltd [2017] QSC 177 Wagner v Harbour Radio Pty Ltd [2017] QSC 222 Category: Procedural and other rulings Parties: Serge Isaac Benhayon (plaintiff) Esther Mary Rockett (defendant) Representation: Counsel: K Smark SC with N Olson (plaintiff) L Goodchild and S O'Connell (defendant) Solicitors: Universal Law Cameron Bell & Associates (plaintiff) O'Brien Solicitors Pty Ltd (defendant) File Number(s): 2015/329298 Publication restriction: None Judgment 1. HER HONOUR: This is an action for defamation which is listed for hearing commencing on 3 September 2018 with an estimate of three weeks. The defendant has made an election pursuant to s 21(1) of the Defamation Act 2005 (NSW) to have the action tried by jury. The plaintiff sought an order dispensing with a jury. On 17 August 2018 I refused the plaintiff's application, reserving my reasons. This judgment records those reasons and also determines two further issues heard that day regarding subpoenas issued by the parties. 2. The issues in the proceedings are described in one of my earlier judgments in terms reproduced here. The plaintiff, Serge Benhayon, is a self-styled "complementary medicine healing practitioner" who propounds a "hands-on complementary healing technique" called Esoteric Healing. He teaches what he describes as "religious and philosophical principles and a way of living known as 'Universal Medicine' and 'The Way of The Livingness'", carrying on business under the name "Universal Medicine". 3. The defendant, Esther Rockett, attended several healing sessions and other Universal Medicine events in 2004 before forming the view that Mr Benhayon was leading a cult. Since 2012, Ms Rockett has devoted her energies to investigating Universal Medicine and publishing her findings on her blog sites, "Universal Medicine Exposed" and "Esther Rockett - Healthcare Activist". By these proceedings, Mr Benhayon sues Ms Rockett for defamation in respect of her blogs. 4. The scope of the proceedings is large. Mr Benhayon sues on 21 separate publications. The pleading specifies numerous imputations allegedly conveyed by those publications including imputations of sexual predation, indecent assault and sexual abuse, misleading conduct in the promotion of the healing services offered by Universal Medicine, the making of false claims about healing, that Mr Benhayon is delusional, exploitative and dishonest, that he preys on cancer patients, that he dishonestly promotes fraudulent ideas of karma for self-gain, that he manipulated a follower to leave him the bulk of her million-dollar estate and that he is the leader of a socially harmful cult. Ms Rockett has pleaded the defence of truth to almost all of the imputations. 5. The application to dispense with a jury invokes s 21 of the Defamation Act, which relevantly provides: "21 ELECTION FOR DEFAMATION PROCEEDINGS TO BE TRIED BY JURY (1) Unless the court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury. … (3) Without limiting subsection (1), a court may order that defamation proceedings are not to be tried by jury if: (a) the trial requires a prolonged examination of records, or (b) the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury." 1. The Court of Appeal has explained that the section confers two powers, each of which is discretionary: Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315; [2011] NSWCA 246 at [42] per McColl JA, Giles JA and Handley AJA agreeing at [1] and [137]. In the case of the power under s 21(3), the satisfaction of one of the conditions specified does not mandate the exercise of the power. In determining whether the power should be exercised, the Court must consider all the relevant circumstances including the important role of juries play in defamation trials: Fierravanti-Wells at [44] and [72]-[79]. 2. The basis for the plaintiff's application in the present case was the alleged complexity of the task the jury would face. The plaintiff relied in that context on the decision of Applegarth J in Wagner v Harbour Radio Pty Ltd [2017] QSC 222 in which his Honour dispensed with the jury pursuant to s 21 of the Defamation Act 2005 (Qld) (which is in identical terms to s 21 of the NSW Act) because of the multiplicity and complexity of the issues the jury would have had to determine in that case. Two features that case had in common with the present action are the plaintiffs' reliance on a large number of publications (in Wagner, 32; in the present case, 22) and reliance on expert evidence. 3. The sting of the defamatory imputations sued on in Wagner was that the plaintiffs caused the deaths of 12 people, or caused the flood which killed 12 people, when a quarry wall breached: Wagner v Harbour Radio Pty Ltd [2017] QSC 177 at [2]. The truth defences in respect of those imputations involved technical expert evidence from hydrologists. The subject matter of that evidence accordingly fell squarely within the particular consideration identified in s 21(3), namely, technical issues not conveniently considered and resolved by a jury. 4. As noted on behalf of the defendant, each case turns on its own facts. In support of the present application, the plaintiff noted a series of features of the action as follows: "(a) there are 22 matters complained of; (b) most of those matters complained of are short (effectively a paragraph in length), but one is quite long, running to 11 pages (the first matter complained of); (c) the total number of imputations for the jury to consider (that is, to decide whether they are carried, and whether they are defamatory) is 62; (d) no, or no substantial, issues as to publication or identification appear to arise, although the jury may be called on to decide whether a few facts are notorious (such as the notoriety of Rolf Harris's crimes and so on); (e) in relation to defences, there are very substantial issues of truth to consider. The defendant has pleaded a defence of truth to all but 3 of the 62 imputations. Even allowing for the substantial overlap between many of the imputations, there are many distinct factual matters which the jury will have to decide in relation to the defence of truth. Some idea of the scale of the matters to be raised can be gained from looking at annexure 'A' to the Amended Defence, which contains particulars of truth and runs for 69 pages; (f) it appears from those particulars that it will be necessary for the jury to read a sufficient amount of the plaintiffs extensive written work and listen to or watch a sufficient amount of his presentations; (g) in relation to the defence of contextual truth, the jury have to decide whether a further 4 imputations were carried, and then the jury would have the task of weighing such of those imputations as might be carried and proved true against the plaintiffs imputations in accordance with the authorities; (h) there is a defence of qualified privilege at common law, including aspects of "reply to attack". While the ultimate conclusions in relation to this defence would be a matter for the judge, any disputed questions of fact would be for the jury (see, for example, Wagner [2017] QSC 222 at [38]). The position in respect of statutory qualified privilege, at least according to recent authority, probably reserves all questions (or at least the important question of "reasonableness") to the judge; (i) the defendant seems to assert that nearly all of the imputations were an expression of her opinion (see Amended Defence, [54]). That involves a further large number of questions for the jury, including whether the matters complained of amounted to an expression of opinion in the relevant sense for each imputation, and whether those expressions of opinion were based on proper material, which in turn would involve specific findings as to the truth of particular factual propositions, which would appear to be extensive; (j) issues of malice arise which would also be for the jury and would seem to require specific findings on a number of matters, or at least specific consideration by the jury of such matters; (k) there may also be the need for the jury to consider matters of expert evidence, should directions for such evidence be given, the extent of which is at present unknown. Although that evidence is not likely to be as technically complex at one level) as the hydrological evidence in the Wagner case, the material in this case presents its own level of difficulty; and (l) an additional factor for consideration is the financial position of the defendant, she having gone bankrupt on her own petition in late 2017, is currently unemployed, and according to her statement of affairs has no assets or other means of satisfying a judgment against her; and (m) in such circumstances, the need to confine the length of the trial and associated costs of trial assume added importance, beyond consideration given to those matters in Wagner." 1. The three critical factors which seem to me to be likely to contribute to the length and complexity of the jury's task are: 1. the number of matters complained of; 2. the volume of the plaintiff's "teachings" in circumstances where the content of those teachings is an issue in the proceedings; 3. expert evidence. 1. The plaintiff noted that, in Wagner [2017] QSC 222, the fact that the complexity of the proceedings and the expected duration of the trial was due to the plaintiffs' choice to sue over 32 separate publications was not regarded as an impediment to dispensing with a jury (at [68]). Without disputing the correctness of that approach, a competing consideration is that the right to a jury trial is an important right, not lightly to be set aside: Fierravanti-Wells at [121], citing Combined Excavations and Supplies v Bowis [2000] NSWCA 298 at [85]. The right of a defendant to trial by jury should not be defeated by a plaintiff's decision to sue on a large number of publications; it is always open to a plaintiff to avoid a lengthy and complex trial by selecting representative publications to sue on. Certainly, it cannot be said that the discretion must necessarily be exercised in favour of dispensing with a jury merely on the basis that there are multiple publications. In the present case, as already noted, most of the matters complained of are short and there is a measure of repetition in the themes captured in the imputations. 2. In preparation for the hearing of the present application, senior counsel for the plaintiff prepared proposed questions for the jury. Those questions assume that, in respect of every matter complained of and every imputation, there is a contest as to whether the imputation is conveyed and, if conveyed, whether it is defamatory. It seems to me that there could be some reduction in the number of questions for the jury if the defendant were to give frank consideration to her position on those issues, particularly concerning whether any imputation, if carried, is defamatory. However, that is a matter for the defendant. 3. As to the volume of the plaintiff's published material required to be considered by the tribunal of fact in relation to the truth defence, the defendant submitted that, although there are many issues to be decided, they ultimately reduce to relatively simple issues. The defendant noted that she has sought extensive discovery and answers to interrogatories with a view to obtaining "the strongest material and presenting her defence at trial in the simplest possible terms". She stated that there is a degree of repetition in the claims made by the plaintiff in his published materials and that the documents discovered by him have accordingly assisted in narrowing the material the defendant will rely upon to prove her case. The defendant indicated that she proposes to rely "economically" upon a selection of short, representative excerpts of the plaintiff's published works. 4. As to expert evidence, it is difficult to reach a concluded position without pre-empting rulings more appropriately made by the trial judge. That said, the following observations may be made. 5. The proceedings have been listed with an estimate of three weeks as a result of a ruling made by me pursuant to s 62(3) of the Civil Procedure Act 2005 (NSW): see Benhayon v Rockett (No 2) [2017] NSWSC 808. The estimate suggested by the parties was 4-6 weeks. At my request, the parties provided a joint memorandum indicating the basis for that estimate. There was no reference in that memorandum to the prospect of any expert evidence. The parties first sought a direction for the service of expert reports considerably later, on 29 June 2018. My direction that the period of the hearing be limited to 3 weeks was founded on a concern that, were the hearing to take up to 6 weeks, the costs would inevitably be vastly disproportionate to the interest at stake, bearing in mind the cap on general damages under the Defamation Act of $398,500 (there is no claim for special damages). 6. In accordance with the direction recently sought, the plaintiff has served a report of Dr Joscelyn Godwin. It is not clear from the report what area of expertise is invoked or whether he has any relevant training, study or experience. The report is directed to the question whether the plaintiff's teachings "belong within a recognised current of religious and philosophical thought". It is not clear to me whether that is an issue in the proceedings. Assuming it is an issue, it is not entirely clear what Dr Godwin's opinion on that issue is. Further, the report does not contain an acknowledgement that Dr Godwin has read the Code of Conduct set out in Schedule 7 to the Uniform Civil Procedure Rules 2005 (NSW) (cf rule 31.23). For all of those reasons, it may be anticipated that there will be a challenge to its admissibility in the trial. 7. Separately, each party relies on an expert theologist who gives an opinion as to whether Universal Medicine is a cult. There may be an issue at the trial as to whether that is properly an issue for expertise or whether it is an issue on which the jury can make a determination without the assistance of an expert. 8. I do not purport to pre-empt the determination of any of those issues but only to explain that there would appear to be a real issue as to the extent, if any, to which the expert evidence that has been served will in fact complicate the task for the jury. The position is certainly very different from the circumstances considered by Applegarth J in Wagner [2017] QSC 222. 9. I am not persuaded that the matters relied upon by the plaintiff are of sufficient weight to overcome the defendant's right to a jury trial. The issues in these proceedings are very much of the kind referred to by Rares J in Ra v Nationwide News Pty Ltd (2009) 182 FCR 148; [2009] FCA 1308 at [19] (cited with approval in Fierravanti-Wells at [74]) in which a jury of ordinary reasonable people will be "able to evaluate the competing factual issues bringing to bear the moral and social standards that they share with the community at large". For those reasons, I rejected the plaintiff's application. Subpoena to College of Universal Medicine 1. A subpoena was issued at the request of the defendant to the College of Universal Medicine. Paragraphs 2 and 5(e) of the subpoena sought records of donations made to the College. The solicitor for the plaintiff, Universal Law, appeared for the subpoenaed party. It was indicated that documents would be produced but the College sought to be permitted to redact the identity of donors on the grounds that the donations were made confidentially. 2. The defendant submitted that the identity of the donors is relevant to the justification defence in respect of a number of imputations which, in summary, attribute the plaintiff with exploiting his followers. In particular, it was submitted that the identities of the donors are necessary to determine that the plaintiff is financially exploiting a population of his clients and the extent to which he is doing so. 3. The plaintiff submitted that the identity of those individuals is not sufficiently relevant to displace the confidence. 4. The claim for confidentiality was supported by an affidavit of Susan Scully sworn 15 August 2018. Ms Scully stated that the College was endorsed as a deductable gift recipient for the operation of a school building fund. She asserted that, when the College launched the fund, its fundraising presentations promised that all donations would be received and managed on a confidential basis. She stated (at para 8 of the affidavit): "It was very important to the College that this be respected and it has been fully respected in the way in which donors' funds have been recorded and managed by the College. I was one of only three people who knew of the identities of the persons who donated funds." 1. However, it emerged during argument that, following correspondence with the Australian Tax Office, the College was required to disclose the identity of the donors to the ATO and did so. It follows that the identity of the donors is not confidential as alleged in the affidavit. I am not persuaded that any basis is established for redacting the material in question. Defendant's notice of motion to set aside subpoenas 1. Five subpoenas were issued at the request of the plaintiff to Riley Martin, Ira McClure, Heath Gibney, Matthew Sutherland and Stephen Clark. By notice of motion filed 31 July 2018, the defendant sought an order setting aside those subpoenas. The subpoena to Ira McClure is not pressed. 2. The recipients of the four remaining subpoenas are persons it has been indicated will be called by the defendant as witnesses to support the allegation that the plaintiff is the leader of a socially harmful cult. The forensic purpose of the subpoenas was said to be to test the particulars of justification, contextual truth and proper material and to prove that the defendant was actuated by malice. 3. Mr Martin, Mr Gibney and Mr Sutherland are persons who attended Universal Medicine events with their respective partners over a period of years. The plaintiff has sought the production of documents in their possession on the basis that each is said to have been identified by the defendant in her answers to interrogatories as "a collaborator and one of her sources of information for her writings about the plaintiff and Universal Medicine". The evidence relied upon by the plaintiff in opposition to the application included documents obtained from the defendant's discovery and other sources broadly supporting that contention. Mr Clark is believed by the plaintiff to be a private investigator who was retained (either by the defendant or by Mr Martin) to investigate the plaintiff. 4. The subpoenas are very broad, seeking any document relating to the plaintiff or Universal Medicine. Mr Olson, who argued this issue for the plaintiff, submitted that the documents sought may return "something which is useful for cross-examination" of those witnesses, which he submitted is a legitimate purpose for a subpoena. He relied in that context on the decision of the Court of Appeal in Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303. 5. Although the Court was divided as to the outcome in that case, it appears to have been unanimously accepted that, for the purpose of determining whether a subpoena passes the test of relevance, it is enough if the documents sought give rise to a line of inquiry for the purpose of meeting the opposing case by way of cross-examination (although Basten JA appears to favour a more narrow approach to that issue): at [10]-[13] per Basten JA; at [50] per Emmett JA; at [61] per Adamson J. However, it is equally clear from that decision that the prohibition against what is often termed "fishing" still applies in that context. Broad subpoenas trawling for something useful for the purpose of cross-examination did not withstand challenge in that case. 6. It was suggested in argument that evidence the witnesses might be expected to produce would include records of attendance at the Universal Medicine events, receipts or notes. However, the plaintiff was unable to identify any particular basis for apprehending that documents would be produced which would be inconsistent with any evidence the witnesses might give other than the general proposition that the matters particularised in the truth defence based on their evidence are disputed by the plaintiff. 7. I consider that the material sought is based on speculation or "fishing" and that the subpoenas should be set aside. 8. For those reasons, I make the following orders: 1. I direct College of Universal Medicine to produce un-redacted documents in answer to the subpoena directed to it. 2. The subpoenas issued to Riley Martin, Heath Gibney, Matthew Sutherland and Stephen Clark are set aside. ********** Amendments 14 December 2018 - Benhayon No 4 may be published. 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. Decision last updated: 18 December 2018