Benhayon v Rockett (No 8) [2019] NSWSC 169

Supreme Court New South Wales

Medium Neutral Citation: Benhayon v Rockett (No 8) [2019] NSWSC 169 Hearing dates: 6 December 2018 Date of orders: 06 December 2018 Decision date: 06 December 2018 Jurisdiction: Common Law Before: Lonergan J Decision: Formal orders reflecting jury's findings Catchwords: DEFAMATION – trial by jury – jury's findings on imputations – final determination in favour of defendant Legislation Cited: Defamation Act 2005 (NSW), ss 30 and 31 Uniform Civil Procedure Rules 2005 (NSW), r 21.7 Civil Procedure Act 2005 (NSW), s 98(1)(b) Category: Principal judgment Parties: Serge Isaac Benhayon (Plaintiff) Esther Mary Rockett (Defendant) Representation: Counsel: N Olson (Plaintiff) T Molomby SC (Defendant)

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

Judgment EX TEMPORE REVISED This is the final determination in these proceedings. 1. The jury found that 12 imputations were carried by the first matter complained of being: (a) Serge Benhayon had intentionally indecently touched his client Esther Rockett during a consultation in his treatment room. (c) Serge Benhayon had intentionally indecently touched a number of his clients in his treatment room. (d) Serge Benhayon instructed students at Universal Medicine training workshops to touch the genitals of victims of sexual assault. (e) Serge Benhayon rants in the hearing of children about sexual violence and other sexually explicit material. (g) Serge Benhayon has an indecent interest in young girls as young as ten whom he causes to stay at his house unaccompanied. (h1) Serge Benhayon is the leader of a socially harmful cult. (j) Serge Benhayon is the leader of Universal Medicine, a group which to his knowledge engages in misleading conduct in promoting the healing services it offers. (l) Serge Benhayon is the leader of Universal Medicine, a group which to his knowledge makes false claims about healing that cause harm to others. (n) Serge Benhayon as the leader of Universal Medicine exploits the followers of that group through his false and harmful teachings. (o) Serge Benhayon is dishonest. (p) Serge Benhayon is the leader of Universal Medicine, a group which to his knowledge preys on cancer patients. (q) Serge Benhayon engages in inappropriate conduct towards women. 1. The jury found the following imputations carried by the other matters complained of: Second matter complained of: (a) Serge Benhayon has a propensity to touch girls inappropriately. The third matter complained of: (a) Serge Benhayon had engaged in sleazy behaviour in that he had groped a girl's anus and chest. (c) Serge Benhayon had groped the anus and vulva of various women under the guise of treating them. The sixth matter complained of: (a) Serge Benhayon is the leader of a socially harmful cult. (b) Serge Benhayon dishonestly promotes fraudulent ideas of karma for self-gain. The seventh matter complained of: (a) Serge Benhayon engages in bizarre sexual manipulation to make money for his business. The eighth matter complained of: (a) Serge Benhayon is a hypocrite because his esoteric healing has death as its goal. The ninth matter complained of: (a) Serge Benhayon has persuaded followers to shun loved ones who will not join his cult. (c) Serge Benhayon is the leader of a socially harmful cult. Tenth matter complained of: (a) Serge Benhayon denigrates life and glorifies death. Eleventh matter complained of: (a) Serge Benhayon is the leader of a socially dangerous cult. (b) Serge Benhayon is the leader of a socially harmful cult which to his knowledge had engaged in dishonest healing practices. (d) Serge Benhayon, the leader of Universal Medicine had exploited children by having them vouch for Universal Medicine's dishonest healing practices. Twelfth matter complained of: (a) Serge Benhayon is the leader of a socially harmful cult. (b) Serge Benhayon had instilled fear and guilt in children to get them to do his bidding. Thirteenth matter complained of: (a) Serge Benhayon has engaged in bullying to stop Esther Rockett exposing that he is guilty of inappropriate behaviour with children. (b) Serge Benhayon is guilty of inappropriate behaviour with children. (c) Serge Benhayon is not a fit person to hold a Working With Children certificate. Fourteenth matter complained of: (none) Fifteenth matter complained of: (a) Serge Benhayon vilifies people with disabilities. Sixteenth matter complained of: (none) Seventeenth matter complained of: (a) Serge Benhayon is the leader of a socially harmful cult that is paternalistic to women. (b) Serge Benhayon is sexually manipulative of his cult followers. Eighteenth matter complained of: (a) Serge Benhayon preys on cancer patients. (b) Serge Benhayon exploits cancer patients by targeting them to leave him bequests in their wills. (c) Serge Benhayon is a charlatan who makes fraudulent medical claims. Nineteenth matter complained of: (a) Serge Benhayon swindles cancer patients. (b) Serge Benhayon was to inherit the bulk of a follower's million dollar estate as a result of his exercising undue influence on her. (c) Serge Benhayon is the leader of an exploitative cult. Twentieth matter complained of: (a) Serge Benhayon is engaged in a healing fraud that harms people. Twenty-first matter complained of: (a) Serge Benhayon makes bogus healing claims. Twenty-second matter complained of: (a) Serge Benhayon is dishonest. (b) Serge Benhayon is delusional. (c) Serge Benhayon is guilty of exploitative behaviour. 1. The jurors found that all but one of the imputations carried by the first matter complained of (imputation (e)), were true. However there were four contextual imputations pleaded in relation to the first matter complained of. The jurors found that three of these contextual imputations were carried and were true. These contextual imputations were: (a) There are reasonable grounds to believe the plaintiff intentionally sexually preyed upon his client Esther Rockett by administering an "ovarian reading" during a consultation in his treatment room. (b) There are reasonable grounds to believe the plaintiff had intentionally sexually preyed upon his clients. (c) There are reasonable grounds to believe the plaintiff had intentionally indecently touched a number of his clients in his treatment room. The jury found that because of the substantial truth of these three imputations, the plaintiff's reputation was not harmed further by the only plaintiff's imputation not proven true. Thus a defence of contextual truth was established in relation to the first matter complained of. On this basis, without more, the defendant is entitled to a verdict in relation to the first matter complained of. 1. The jurors also found proved true all of the imputations found to have been conveyed by the sixth, seventh, eighth, ninth, tenth, eleventh, thirteenth, fifteenth, seventeenth, eighteenth, nineteenth, twentieth and twenty-first matters complained of. 2. That is, in the matters complained of after the first, the only imputations found not to be true were the single one conveyed by the second matter complained of, the two conveyed by the third matter complained of, imputation (b) conveyed by the twelfth matter complained of and the imputation (b) conveyed by the twenty-second matter complained of. 3. Consequently, on this basis alone the defendant is entitled to a verdict in her favour in relation to the sixth, seventh, eighth, ninth, tenth, eleventh, thirteenth, fifteenth, seventeenth, eighteenth, nineteenth, twentieth and twenty-first matters complained of. 4. Insofar as it depended on the decision of the jurors, they found the elements of the defence of honest opinion established in relation to the single imputation carried by the second matter complained of, the two imputations carried by the third matter complained of, and imputation (b) conveyed by the twenty-second matter complained of. 5. The jurors also found in favour of the defendant in relation to the defence of honest opinion for all other imputations than imputations (a) and (e) from the first matter complained of (to which the defendant had not pleaded the defence of honest opinion), and imputation (b) from the twelfth matter complained of. 6. The only imputation in relation to which the jurors did not make a finding in favour of the defendant in relation to the defence of honest opinion was imputation (b) from the twelfth matter complained of. 7. The jurors however decided the question of reasonableness in s 30(1)(c) of the Defamation Act 2005 (NSW), in favour of the defendant in relation to every imputation. 8. The questions remaining to be decided after the jury's findings under ss 30 and 31 of the Defamation Act are: 1. Did the opinions expressed relate to matters of public interest? In relation to the defence of honest opinion; and 2. a. Did the recipients of the matters complained of have an interest or apparent interest in having information on some subject?; and b. Were the matters published to the recipients in the course of giving them information on that subject? In relation to the defence pursuant to ss 30 and 31. The plaintiff concedes that each of the questions stated should be answered in favour of the defendant. 1. By reason of the jury's decisions, there must be a verdict for the defendant in relation to matters complained of 14 and 16. 2. The defence of truth is made out for the sixth, seventh, eighth, ninth, tenth, eleventh, thirteenth, fifteenth, seventeenth, eighteenth, nineteenth, twentieth and twenty-first matters complained of. 3. In addition, I find that in relation to imputations 3(c), 3(d), 3(g), 3(h1), 3(j), 3(l), 3(n), 3(o), 3(p), 3(q), 5(a), 7(a), 7(c), 11B(a), 11B(b), 11D(a), 11F(a), 11H(a), 11H(c), 11J(a), 11L(a), 11L(b), 11L(d), 11N(a), 11P(a), 11P(b), 11P(c), 11T(a), 11X(a), 11X(b), 11Z(a), 11Z(b), 11Z(c), 11AB(a), 11AB(b), 11AB(c), 11AD(a), 11AF(a), 11AH(a), 11AH(b), 11AH(c), the requirement of s 31(1)(b) is made out, and that in combination with the jury's decisions, there is, therefore a defence of honest opinion made out for those imputations. 4. In relation to the defence of qualified privilege, pursuant to s 30 of the Defamation Act, pleaded to all imputations, I find that the matters specified in s 30(1)(a) and (b) have been made out and that, therefore, in combination with the jury's decisions, the defence provided by that section is established for all of the publications. 5. I therefore enter verdicts for the defendant in relation to matters complained of one to three inclusive and six to twenty-two inclusive. 6. The exhibits may be returned. 7. Interlocutory and other judgments delivered in these proceedings to date may now be published on Caselaw. 8. The plaintiff is to pay the defendant's costs of the proceedings, however the question of whether those costs are to be paid on an indemnity basis from a particular date is reserved. 9. I reserve my decision in respect of the application made by the defendant pursuant to r 21.7 of the Uniform Civil Procedure Rules 2005 (NSW), relating to leave to use discovered documents. 10. I order that pursuant to s 98(1)(b) of the Civil Procedure Act 2005 (NSW), the College of Universal Medicine is to pay the defendant's costs of the application dealt with on 17 August 2018 fixed in the sum of $3,000 plus GST. 11. I order that the defendant is entitled to interest on any paid costs and disbursements from the date on which they were paid, calculated in accordance with the Civil Procedure Act and the UCPR.