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 1. 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". 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 web log ("blog") and a series of comments and tweets that he alleges are defamatory. 4. 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. 5. 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. 6. 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. 7. 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." 1. These are my reasons for that decision.