Benhayon v Rockett (No 5) [2018] NSWSC 1394

Supreme Court New South Wales

Medium Neutral Citation: Benhayon v Rockett (No 5) [2018] NSWSC 1394 Hearing dates: 6-7 September 2018 Date of orders: 07 September 2018 Decision date: 10 September 2018 Jurisdiction: Common Law Before: Lonergan J Decision: Pursuant to Uniform Civil Procedure Rule 2.1 I dispense with the requirements of Uniform Civil Procedure Rule 31.29(7) in so far as it would prevent the evidence in chief of Professor John Dwyer being given by the tender of his report dated 25 July 2018. Catchwords: CIVIL PROCEDURE – evidence before jury – expert report – whether expert report should be admitted into evidence before jury – where expert report not difficult to understand – where expert report written in layman's terms Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 2.1, 31.29 Category: Procedural and other rulings Parties: Serge Isaac Benhayon (Plaintiff) Esther Mary Rockett (Defendant) Representation: Counsel: K Smark SC; N Olson (Plaintiff) T Molomby; L Goodchild (Defendant)

Solicitors: Universal Law (Plaintiff) O'Brien Solicitors (Defendant) File Number(s): 2015/329298

Judgment 1. This is a defamation trial before a jury of four. The plaintiff 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". 2. The plaintiff also conducts public training workshops in Esoteric Healing described in his statement of claim as a "hands on" complementary healing technique. 3. He has sued the defendant seeking damages and permanent restraining orders in respect of matters she has published in the form of a weblog and a series of comment and "tweets" that he alleges are defamatory. 4. The defendant relies on a number of defences including truth and honest opinion. 5. Particulars of the truth defence filed as an annexure to the Defence include that the plaintiff engages in misleading conduct in promoting the healing services, knowingly makes false claims about healing that cause harm to others, is delusional, exploits followers through false and harmful teachings, engages in bizarre sexual manipulation to make money, denigrates life and glorifies death, engages in dishonest healing practices, makes bogus healing claims, is dishonest and is guilty of exploitative behaviours. 6. An expert physician, Professor John M Dwyer, has been engaged to provide an opinion on the validity or otherwise, from the point of view of medical science, of a number of statements made by the plaintiff about health and health related issues and a number of healing procedures represented in publications by the plaintiff and his company, Universal Medicine. 7. Professor Dwyer's report dated 28 July 2018 is lengthy. It is structured in a numbered paragraph format (91 paragraphs) where the assertion or statement being examined by him is quoted, followed by an analysis by him of the assertion or statement. 8. The analyses are followed by a number of indexed annexures for cross-referencing the material evaluated. 9. On Friday 7 September 2018, I made an order allowing the report to be provided to the jury (at the appropriate time) rather than the evidence in chief of Professor Dwyer being given orally. These are my reasons for making this order. 10. Senior counsel for both parties agreed that this is a circumstance where the jury would benefit from receiving the report rather than the evidence in chief being led from Professor Dwyer in the absence of the written report and appended material. 11. The reasons to adopt such a course were stated to be economy of time, that the report is in straight forward language and is not overly technical, there would be no difficulty in understanding its contents and the report is directed to matters with which ordinary members of society would have some level of familiarity. 12. I accept those submissions and have formed the view that the jury will obtain significant assistance in the understanding of the evidence to have the report in hard copy available to them.