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. Statutory framework: truth and honest opinion 1. Section 25 of the Defamation Act 2005 (NSW) provides that it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. 2. Section 31 of the Defamation Act relevantly provides in respect of honest opinion: 31 Defences of honest opinion (1) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. … (4) A defence established under this section is defeated if, and only if, the plaintiff proves that: (a) in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published, or … (5) For the purposes of this section, an opinion is based on proper material if it is based on material that: (a) is substantially true, or (b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or (c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29. (6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material. 1. Clearly, there is some complexity associated with the matters the jury has to consider with respect to s 31. Submissions and argument 1. Mr Molomby SC submitted that the proper order for the jury questions is that justification should be considered first, because an important issue in the case is whether the defendant, in writing what she wrote, was writing things that were true, and if a vindication of that nature is determined by the jury to apply in respect of any of the matters complained of, the defendant should have the benefit of that determination. 2. Mr Smark SC pointed out that Uniform Civil Procedure Rules 2005 (NSW) provisions required particulars of defences, including when relying upon the defence of honest opinion, to identify with clarity the "facts truly stated", and not just the material upon which those facts are based. 3. He submitted, without criticism of the defendant, that the approach the defendant has taken, was to refrain from such specificity and to proceed to meet the claimed imputations in terms of the matters complained of, rather than descending into detail regarding specificity of imputations. Instead the approach of the defendant is to meet the imputation(s) only in general terms. 4. Mr Smark SC argued that there are consequences for the jury in grappling with this approach as illustrated in Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695; [2015] NSWCA 290 at [45]-[48] ("Ahmed"). In that case, the Court of Appeal identified problems created where a jury was asked to determine whether each imputation was substantially true, before being asked whether any imputation involved an expression of opinion rather than a statement of fact. 5. The judgment of the Court dealt with the issue under the heading "The form of the jury questions" as follows: "[45] Dealing with the imputations derived from the first broadcast (which came in two parts), the central challenge by the appellants was directed to the findings that each was conveyed as a question of fact and not as an expression of opinion by Mr Hadley (and in some cases, by Mr Y as well). [46] The manner in which the questions were identified may not have assisted the jury in their task. Questions 1 and 2, appropriately, asked with respect to each imputation first, whether it was conveyed and, secondly, whether if conveyed it was defamatory of the plaintiff. All seven were found to satisfy those tests. Question 3 then asked whether the defendants had established that such imputations were "substantially true". The jury answered "no" in respect of each imputation. That question would not have arisen in respect of those imputations which were conveyed as an expression of opinion rather than as a statement of a fact. However, that distinction was raised by question 4, which was required to be addressed only after the jury had considered whether the imputations were substantially true. (Question 5 was to similar effect, but was limited to imputations conveyed by the caller, Mr Y.) Question 6 then asked whether, with respect to any of the imputations said to be statements of opinion, they were based on material which was substantially true. The instructions with the questions required that they be dealt with sequentially. Thus, by placing question 3 before question 4, question 4 may have been substantially answered by default as a result of first answering question 3. [47] The sequential approach identified above was confirmed by the trial judge in the course of his directions to the jury. Very early in the summing up, the judge took the jury through the list of questions and stated: "Now after question 2 comes question 3 which is the first of the questions dealing with the defences. That will involve you considering whether or not on the evidence you have been persuaded that any or all of the plaintiff's meanings are true. Depending on your answers to that, then one will move to consider the other lines of defence for which the defendants contend. At this point I will not get ahead of myself and I suggest that you do not either because it will only lead to confusion. It seems to me that you would find it logical and helpful just to approach the questions in the order in which they are presented to you and I would encourage you to stick to that order, proceed one at a time, and you will find that, depending on how you answer the earlier questions, you may not need to answer some or all of the later questions." [48] The problem is immediately apparent: the jury was asked to determine whether each imputation was "substantially true" before being asked whether any imputation involved an expression of opinion rather than a statement of fact. That the confusion thus raised was real and not merely potential, was revealed by the answers that the jury gave. Thus, in answer to question 3, the jury found that none of the imputations was "substantially true", a finding which included imputation (d), namely that the plaintiff had brought a frivolous application for an AVO against Mr Y. In answering question 5, the jury concluded that imputation (d) involved an expression of opinion by Mr Y. In answering question 6, however, which asked whether any imputation involving an opinion was based on material which was substantially true, the jury answered "no". The jury also found, for reasons which are unclear, that imputation (d) did not involve the expression of opinion on the part of Mr Hadley. This inconsistency in approach may have resulted in part from the form of questions 4 and 5, which were directed to whether defamatory imputations (rather than defamatory matter) were either an expression of opinion or statement of fact, and the assumption made by each of the questions that particular defamatory imputations were an expression of opinion or a statement of fact of Mr Hadley and, in some cases, of Mr Y as well." (Footnotes omitted). 1. Mr Smark SC identified the criticism made by the Court in that judgment at the beginning of [46] is one which is salient to the circumstances in this case. He submitted that the question of whether particular imputations were substantially true, and the answers of 'no' in respect of each imputation, created a difficulty in that case, because "that question would not have arisen in respect of those imputations which were conveyed as an expression of opinion rather than as a statement of fact". The problem was identified as the distinction not being raised until question 4, which was addressed only after the jury had already considered whether the imputations were substantially true. 2. Mr Smark SC took me to s 31 of the Defamation Act to illustrate what he outlined to be the problem in the current case. He argued that it is preferable in the circumstances of this case, that the jury grapple with the distinction required by s 31(1)(a), that is, the defendant needing to prove that the matter was an expression of an opinion of the defendant rather than a statement of fact, before being "distracted" by what Mr Smark SC referred to as "the extraneous question" of whether the matters were substantially true. 3. Mr Smark SC acknowledged that it is not entirely clear whether those comments in the judgment of the Court in Ahmed could be considered part of the ratio of the case, as opposed to being obiter remarks. He described them as a "step along the way, or a factor in the decision that the verdicts in question were not safe". 4. My attention was also drawn to two decisions of McCallum J; O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 and Feldman v Polaris Media Pty Ltd atf The Polaris Media Trust t/as The Australian Jewish News (No 2) [2018] NSWSC 1035 as authority for the proposition that it is appropriate to consider the defence of honest opinion first, and that her Honour relied upon Ahmed in her decision to take that approach. 5. This is what her Honour said in O'Brien under the heading, "Order in which defences should be determined": "[41] The truth defences occupied by far the greater portion of the hearing time and were addressed first by each party in closing submissions. I consider it more logical, however, to address the defences of fair comment and honest opinion first. [42] The topic of the order in which the questions of fact raised by defences of truth and comment might be addressed was touched upon in the judgment of the Court of Appeal in Harbour Radio Pty Ltd v Ahmed. The plaintiff's claim in that case was tried with a jury. I accept that different considerations arise in that circumstance. There is nonetheless a certain logic in the Court's analysis. [43] As commonly occurs in this jurisdiction, the jury in Ahmed was directed to answer a list of questions of fact. Questions 1 and 2 asked, as to each imputation, whether it was conveyed and if so whether it was defamatory of the plaintiff. The Court said that was appropriate. [44] Questions 3 and 4 were addressed, respectively, to the defences of truth and comment. Question 3 asked, as to each imputation, whether the defendant had established that the imputation was substantially true. Question 4 asked, as to each imputation, whether it was conveyed as opinion. In his summing up, the trial judge suggested to the jury that they would find it "logical and helpful" to approach the questions in the order in which they were presented. The Court of Appeal noted, however, that question 3 (whether each imputation was substantially true) would not have arisen in respect of those imputations which were conveyed as an expression of opinion rather than as a statement of fact (question 4). The Court accordingly considered that the manner in which the questions were identified may not have assisted the jury in their task (at [46]). [45] A further matter may be noted in respect of questions in the form of those posed for the jury in Ahmed. Question 4 is directed, in terms, to the imputations specified by the plaintiff (that feature of the questions, in turn, appears to have informed the view of the Court in Ahmed that the form of the questions may not have assisted the jury). Both the defence of fair comment at common law and the defence of honest opinion under s 31 of the Defamation Act are directed to the matter complained of (rather than to the imputations specified by the plaintiff, as in the case of the defences under ss 25 and 26 of the Defamation Act). However, as explained by the High Court in Channel Seven Adelaide Ltd v Manock, the meaning pleaded by the plaintiff is relevant to the defence, not least because it is the meaning found by the court that is to be scrutinised for its fairness. On that basis I accept that, as occurred in Ahmed, a question to be posed for the tribunal of fact is whether the ordinary reasonable viewer would have understood the meaning found to have been conveyed as comment as opposed to fact. [46] However, that is not to say that the form of the imputation is determinative. The care to be taken in that respect was emphasised in Ahmed at [44], where the Court said: The risk in treating the imputation as the matter which must be identified as an expression of opinion or fact is that the form of the imputation may not accurately reflect the language of the defamatory publication. That is significant, bearing in mind the contextual nature of the inquiry as to whether a statement is opinion. [47] As already noted, the discussion in Ahmed related to a trial with a jury. While it is open to me to take a different course, I consider that the question whether the defamatory meanings I have found would be understood to be expressions of opinion as opposed to statements of fact should logically be determined first." (Footnotes omitted). 1. In Feldman, her Honour under the heading "Defence of honest opinion" said this at [41]: "It is appropriate to consider the defence of honest opinion first, for the reasons I explained in O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 at [41]-[47]." 1. Mr Smark SC identified that it would be better and more practical for the defendant to first identify to the jury what the contended for facts were upon which the matters were based, and the jury can decide whether those matters are true or not and the plaintiff can then deal with those, making submissions as to what the ordinary reasonable reader would understand the basis to be. Mr Smark SC argued that it was more logical and less confusing to the jury to approach the questions that way. 2. Mr Molomby SC submitted that paragraph [47] of O'Brien makes it clear that McCallum J did not see herself as bound to any particular course in terms of the order of dealing with the defences (and thus the order of the jury questions), but was simply addressing the question of what logically should be determined first. 3. Any potential confusion for the jury will arise from the complexity of s 31 and the very broad background facts. Honest opinion defences are complex. The truth defences can and will be addressed more generally and before the close analysis in the more complex context required by s 31. 4. The defendant is entitled to a "vindication" in the same way a plaintiff is, and that vindication is applicable by way of a finding by the jury of truth and so this has a primary value to the defendant. It also has the practical effect of removing from the complexity of analysis required for the s 31 "honest opinion" defence on any matters that the jury finds substantially true. 5. In reply, Mr Smark SC argued that the jury would be subject to a "false question" to be asked the truth value of what was and ought to be accepted by the jury to be an opinion, and so they would be left puzzled as to why they had been "falsely polled" on an issue which "does not arise". In other words, matters found by the jury to be opinion, should not be the subject of being asked, prior to this, whether an imputation is true or not because it is a "false question" the jury would never have to answer, if it was determined by the jury to be a statement of opinion. Decision 1. It seems to me, reading the Ahmed judgment as a whole, the decision to set aside certain orders and order a retrial limited to particular issues, was based upon apparent inconsistency in the way the jury questions were answered, and thus a perversity in the answers, as opposed to the order of the questions alone being entirely the author of that problem. 2. In paragraph [53] of Ahmed, where dealing with the issue of whether directions by the trial judge could have cured the problem and therefore whether counsel's failure to request a redirection was a problem, the Court said: "…the appellant's challenge was primarily to the unreasonableness of the jury's findings. The Court can more comfortably be satisfied that what appear to be unreasonable findings should be so characterised in circumstances where the path by which the jury may have gone astray is identifiable in the matters set out above." 1. Further, what is said by the Court at [48] about the content of questions 4 and 5, rather than the order in which they were asked, seems to be another significant focus of the Court's path of reasoning to its conclusion that the verdicts were not safe. 2. As I read McCallum J's comments in O'Brien and Feldman, whilst recognising the concerns and considerations raised by the Court in Ahmed, her Honour makes a focussed decision in each case as to the order in which it was more appropriate, in those cases, to consider the defences raised. In those cases, her Honour concluded she should deal with honest opinion before the justification defence. I do not read her Honour's statements as simply following Ahmed because she had taken the view that she was bound by Ahmed to proceed that way. 3. I reject the plaintiff's submission that a "polling" on the question of whether the matters published are "substantially true" is a "false question" or likely to confuse the jury simply because a further defence raised – honest opinion – may well result in the jury characterising some or all of the matters as opinion and that there will then be a need then for the jury to analyse the truth of the material upon which the opinion is based pursuant to ss 31(5) and (6). 4. I accept the defendant's submission that there is value in the justification defence being dealt with first to potentially provide vindication for the defendant. 5. It seems to me that the same vindication applies equally to the plaintiff; that is there is value to the plaintiff in a vindication for him if there are findings by the jury that the imputations sued upon were found by the jury to be not true. Any complexity entailed in s 31 and the honest opinion defence are present, whether it is dealt with first or second. It is my view there is logic in dealing with justification first, followed by honest opinion. 6. I do not consider myself bound by anything said in Ahmed to direct the jury to deal with the defences raised in any particular order. I am of the view that given the broad purview of the evidence, and the nature of the issues that arise in this case, it is appropriate for the jury first to consider the justification questions, followed by those directed to honest opinion. ********** 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: 01 March 2019