Benhayon v Rockett defamation defence updates September 2016Posted: August 31, 2016
September 28: Please be patient
September 4: Sep 2nd directions hearing orders
August 31: Judgment – Benhayon’s application to have the contextual truth defence struck out DISMISSED. *Recap since May. *Documents and links
September 28: Developments
There have been some developments in the case – a very interesting mixed bag, but I’m awaiting some clarification on several issues. I’d like to get everything clear before I share, I’m not sure how long that might take, so please be patient.
In the meantime, the blogs are now closed to comments. Thank the New Era of Esoteric free speech & ‘One Unified Truth’.
Benhayon’s May 6 application to strike out my contextual truth defence dismissed
Thank you all for your patience and support, the court ruled in my favour for the second listed hearing on May 6.
Benhayon made an application to the court to have a substantial defence – one of five I’ll be taking to trial – struck out. His application was dismissed, which means I will be taking a full defence to court.
You can read the full judgment at this link: https://www.caselaw.nsw.gov.au/decision/57c4fb60e4b058596cb9ef63
See the August 31 entry below for more info on the defence – both the contextual truth defence and the defence as a whole.
Also stand by for some promising updates regarding the future of the defence in general. There are negotiations underway among my high level supporters. I may make a blog update and a video talking about the big picture when there’s more certainty on those developments. The outlook is very good.
September 2nd directions hearing, trial date (?) and court orders
We don’t expect a trial to take place until next year, and we may not have a trial date until we complete a bunch of procedural (pre-trial housekeeping) steps. Those will occur incrementally. I will continue to update on the procedurals, but it’s unlikely anything sensational will happen in working through the pre-trial paperwork.
Friday’s directions hearing wasn’t eventful. The court made the following orders.
1. The Plaintiff pay the Defendant’s Costs of the Plaintiff’s application to have the defence of contextual truth struck out.
2. The Plaintiff to serve any Further Amended Statement of Claim adding any contextual imputations, and any evidence in support of an application to adopt contextual imputations, by 4pm 9 September 2016.
3. The matter be re-listed on 16 September 2016.
The ‘application to adopt contextual imputations’ is open to Benhayon. It’s likely he may adopt some of my contextual imputations as part of his claim for damages. That won’t impact my defence. It just means I will plead ‘Justification (Truth)’ to them, seeing I have truckloads of admissable evidence as proof.
An order to pay my costs is always welcome, however costs are not recovered until the conclusion of proceedings.
August 31: The May hearing – keeping the contextual truth defence
In May, Benhayon tried to have the contextual truth defence struck out. Benhayon’s claim is that I’m liable for damage to his reputation for statements I made in a blog I wrote about his hands on healing practices and conduct with women and children. One of my defences, the defence of contextual truth, is that he’s claiming defamatory imputations (meanings) out of context to a broader range of statements I made in the same publication about a bigger picture of his dishonest, delusional and exploitative behaviours. The defence allows me to nominate those contextual imputations and to argue that because they are substantially true – and I have admissable evidence of his dishonest, delusional, exploitative etc. behaviour – his reputation was not further damaged, and I can’t be held liable.
My team successfully argued against Benhayon’s submission, and his application was dismissed.
The contextual imputations I will take to trial are:
- The plaintiff engages in misleading conduct in promoting the healing services offered by Universal Medicine.
- The plaintiff knowingly makes false claims about healing that cause harm to others.
- The plaintiff is delusional.
- The plaintiff as the leader of Universal Medicine exploits the followers of that group through his false and harmful teachings.
- The plaintiff is dishonest.
- The plaintiff is the leader of Universal Medicine, a group which to his knowledge preys on cancer patients.
- The plaintiff engages in inappropriate touching of women.
The defence as a whole – five legal defences
Only one defence needs to succeed for each matter he’s suing me for (a blog post, two blog comments on the same page, and a tweet). I’m using five legal defences:
- Justification (truth) for a couple of claimed imputations. (I can’t plead truth to things I didn’t say or mean.)
- Contextual truth – statements in the matters complained of that may be found to be defamatory, but which Benhayon is not suing me for, are substantially true, therefore his reputation was not further harmed.
- Qualified Privilege – my readers had an interest in my replies to Universal Medicine’s attacks on me and I have reasonable grounds for making the statements I made, based on my experience, background and research etc.
- Honest opinion – my views were honest opinions based on proper material and related to matters of public interest.
- Fair comment – my comments were based on true facts and proper material and related to matters of public interest.
Proceedings at trial
I’ve served an application for trial by jury and we’re awaiting the decision on that. For now, we’ll assume that will be approved.
In order to be found liable for damages to Benhayon’s reputation, the jury will need to determine the following for each matter complained of and each imputation. The benchmark is that it would need to be found to be so by an ‘ordinary, reasonable reader’. (See below)
- Whether the meaning of each imputation is capable of being carried by what I wrote in the publication.
- Whether the meaning is, as a matter of fact, carried.
- Whether the meaning is capable of being defamatory of the plaintiff.
- Whether the meaning is, as a matter of fact, defamatory of the plaintiff.
- If the meanings are in fact carried, and are found to be in fact defamatory, the jury will decide if any of the above defences apply.
- If there are any other factors which would mitigate damages if any of the meanings are found to be carried, and are found to be defamatory, and if the plaintiff suffered damages as a result. For example, in Benhayon’s case, the fact he himself published the sense and substance of the matters complained of on his own websites may lessen any damages. Benhayon’s sites attributed certain accusations to me I have never made, and have never been made on my sites by commenters or in anything I’ve published or written.
The jury makes all of the above determinations after hearing all the evidence. In other words, they decide all of that at the end of the trial. If I’m not granted a jury trial, it will be heard and decided by a judge alone.
I’ve pulled these out of some much longer paragraphs in the defamation act to give readers an idea of how the court will determine what is in fact defamatory.
- The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is inferred from it; in deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable; accordingly, any strained or forced or utterly unreasonable interpretation must be rejected.
- The ordinary reasonable reader is a person of fair average intelligence who is neither perverse, morbid, suspicious of mind nor avid for scandal. However, that person does not live in an ivory tower but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.
I want to thank all of you who have supported my defence – with donations, loans and well wishes. Every bit of it helps! More donations will certainly help seeing the defence so far has been a very considerable expense. We’re more or less running to the expected budget. I have some more updates regarding support for the defence, and I’ll make those, plus an explanatory video running through the whole mess some time in the next week.
You can also do me a favour by taking care with your social media comments on the case. There is no issue with mouthing off or venting about Serge and UniMed’s nonsense, however I’d like to ask you all to take care with any comments about the court proceedings, judge or judgments.
The judgment that was brought down was what my team expected, it was the judgment we hoped for, and we are confident of cleaning up this case – comprehensively. I wouldn’t have blogged a word or defended this case if I didn’t think I was legally able to do so. However, I won’t second guess or speculate on what the judge or jury says or thinks. I’d like to ask for your co-operation, and ask that you don’t get too carried away speculating on the proceedings, and please limit any discussions about the judge and the legal counsel. They’re good people, excellent professionals and we need to have confidence, show them respect and let them do their jobs.
It was a bit of a wait since May for this judgment, but lots has happened – some of which will make its way into my defence.
- Benhayon released his bizarre defence/promotion of Esoteric Breast Massage in June.
- UM continued their aggressive infiltration of schools and youth initiatives, with limited success.
- The UK charity commission published UM’s UK charity accounts, showing HM Revenue and Customs served them with an enormous tax bill.
- UniMed cultist, Gail Fuller, decided to run for a council seat in Byron Shire. Another cultist, and member of the deluded UM *Facts* Team, Ray Karam, is running for Mayor in Ballina. The Byron Shire Echo has reported they were part of the cult mob that tried to drive me and my livelihood out of Byron Bay.
- I spruced up Our Mission page with a concise list of our concerns, plus a list of outcomes to our exposure, notifications and official complaints.
Documents & links
LINKS TO DOCUMENTS – Further AMENDED STATEMENT OF CLAIM – May 2016
The blog & comments I’m being sued for: Universal Medicine’s sexual abuse apologism hits a crescendo