Esther Rockett legal defence update May 2017Posted: May 7, 2017
14 May progress, litigious spam, UM goes to court + unofficial update video below
7 May 2017 Survival fund – video above
For now I’m not fundraising for legal bills but for my day to day living expenses.
Please donate to my survival fund!
Bank Transfers to Westpac BSB 734063 Acc. No. 654143
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Quick run down
I’m defending two defamation claims. One brought by Serge Benhayon in NSW Supreme Court, Sydney in November 2015. The second brought by his close associates Caroline Raphael and Ray Karam in the Qld District Court, Brisbane Christmas 2016.
Caroline Raphael is a registered psychologist who works at Universal Medicine’s Goonellabah headquarters. She publicly promotes UM and describes Benhayon as a ‘work colleague’ and ‘dear friend’.
Ray Karam is a business owner who lives in Goonellabah. He is a former NSW police officer and last year he ran for mayor of Ballina. He publicly promotes UM and describes Benhayon as a ‘best friend’ and ‘brother’.
Defences for both cases are very strong. I have filed very comprehensive defences pleading that all statements I made in my publications are legally justified. I am not liable for “damage to reputation”. If the plaintiffs want to claim damage has been done to their reputations, my defences plead that it’s been caused by their own conduct.
In NSW I’m pleading truth, contextual truth, qualified privilege and honest opinion defences to the whole thing. We are at a critical and time consuming phase of proceedings (discovery and interrogatories) where both Benhayon and I are under court orders as of March 10 to produce any documents we have related to the allegations in the claim and defence, and answer detailed questions in writing.
In Qld I filed a comprehensive defence on March 24. I’ve pleaded truth to all imputations, and am using the four further defences. However, I’ve run out of funds to pay a solicitor.
In the weeks since, I received a barrage of legal demands from Team UM culminating in a hearing on 5 May brought at 2 days notice, which was not enough time for my counsel to appear. UM refused to allow me time to negotiate a date for adjournment, so I had to represent myself. They didn’t believe I still have Senior Counsel representing me. They do now.
Unofficial update video
The unofficial update video below is for enthusiasts and runs to 54 minutes. I talk about events over the last couple of months including UM’s undistinguished two hours in court on 5 May and all the carry on that went with it. Sorry about the length, but a lot of you want to know what’s happening and this saves me time on telling each of you individually.
If you want to skip through the video:
6:00 May 5th hearing – self represented.
14:00 Counsel representing me and terms
20:00 Team UM in court
26:30 Litigation spam & gaming the jurisdictions
35:00 Defamation, ‘abuse’, hurt feelings and free speech
42:30 Judge’s remarks (more on that below. Scroll down.)
My legal team
I’m currently running the defences on no budget. I don’t have a solicitor, so it’s a lot of work. I’m trying to find solicitors who will work on a conditional costs basis. Several contacts within the legal profession have been trying to get me that help, but so far the the firms we’ve approached are too busy to take the cases on. We continue to try and several solicitors have given me some informal advice on their own time.
Mr Tom Molomby SC continues to represent me in both claims and has agreed to do so whether I have a solicitor or not. He is committed to making sure these important cases get a fair hearing, and he is very much looking forward to cross examination. As we all are. Three other Sydney barristers have offered assistance and we may hear more about them in the coming weeks and months.
Mr Molomby has done a lot of work on both defences and has also provided me with a lot of advice. He has read all Fletcher’s letters and checked my replies.
I’m out of funds and in debt. Below I wrote about the survival fund. Rather than fundraise to pay lawyers, I’m now fundraising to avoid homelessness while I get through probably the most intense workload in the proceedings. Please make a donation to keep me alive until I get back to earning money to survive.
As I said in the video, Mr Molomby is not billing me. Yet. To be very clear, I have not paid Mr Molomby a cent since he joined the team last September. However, he is certainly not working for free and he will take his fee from any award of costs. The other barristers will work under the same or a similar arrangement.
Esoteric super powers
In February we unfortunately lost our application for a stay of the proceedings. Given the very close relationship and similarities between the NSW & Qld claims we thought the court would stay the proceedings, rather than essentially try the same case in two states, but we lost.
My solicitor wanted to appeal but in the end after quite a bit of advising, I decided not to. I filed the defence on 24 March, and then got busy on the court ordered discovery for the NSW claim.
This is where it gets Esoteric. In the six weeks following, Paula Fletcher of Universal Law got a little carried away with her letters and made numerous demands and legal threats requiring urgent replies. She’s threatening to seek court orders in Qld if I don’t comply by the dates she’s set. The work she demanded I do and her Esoteric deadlines were simply humanly impossible, even if I had an office full of solicitors at my beck and call. Her letters were full of irregularities and errors. I was forced to spend large amounts of time replying and told her repeatedly there was no need for the urgency, that her demands do not override NSW Supreme Court orders, and she was causing me delay.
On 2 May, Fletcher notified me that she required a response to a letter immediately, when she’d originally given me until 8 May, and told me she was listing two applications for hearing on 5 May.
Because apparently on Planet Esoteric, Senior Counsel based in another state is available to magically appear at hearings on two days notice. When I told her counsel wasn’t available for that date and asked her to seek adjournment until I could get alternative dates, she listed anyway. I had to appear on two days notice, two hours drive from home to represent myself in two complex applications.
Even sixth dimensional Master Sergio doesn’t have the powers Fletcher attributes to me. Which makes me wonder if I’m not, unbeknownst to me, a Glorious Ascended Mistress from the Seventh realm. Or something.
Qld hearing 5 May
Was interesting, watch the video if you’d like to learn more. Team UM’s behaviour was as ‘truth-full’ and loving as ever, and it didn’t go unnoticed by the judge.
The hearing was about as Esoteric as the last effort from Universal Law and UM’s in house barrister, Charles Wilson. I did try and argue one application – a bit of procedural hoo ha, and lost, unfortunately. I also asked the judge beforehand for an adjournment for the second application. The judge didn’t have to hear my argument for an adjournment in the end because Wilson had estimated two hours for the hearing, and spent ninety minutes arguing the first, which was the simpler one of the two. The judge adjourned the second to June.
Last time, Wilson hurled around accusations I’m malicious, vexatious and had attempted to mislead the court. None of that flew. UM also rocked up with affidavits professing to my ‘trolling’. Dr Rachel Hall even annexed about 25 tweets showing me replying to her obsessive tweets about me and questioning her promotions of pseudoscience. None of it was relevant to the application.
This time, UM rocked up again with affidavits alleging I’m a troll. Again irrelevant to the application. I objected to the paragraphs and the judge agreed, he struck the lines out. Wilson protested and told the judge I’m answering to a very big claim in NSW over my ‘extensive trolling’ blah blah blah. The judge was not impressed and told Wilson to stop using that accusation because ‘it isn’t evidence’ and it’s just ‘applying a label’ to a person that is essentially meaningless.
Another affidavit from Fletcher accused me of an ‘intention (so it appears) to bring the media to court‘. Wilson tried to put that scintillating assessment to the judge and asked him to read this passage from one of my blogs:
Either way, in the unlikely event either were to win, as well as receive an award of costs, they won’t get anything out of me. I’ve got nothing. And in the new case, they’d only succeed in having six long lost tweets taken down, after a close examination by the court of their reputations and conduct, and all the accompanying paperwork. Open to any media or members of the public that show up.
The judge just stared at Wilson for a while without blinking. He didn’t comment.
As we’ve realized, stating plain, ungarnished facts must be some sort of offence under the Esoteric Thought Crimes Act.
It doesn’t fly in the temporal courts.
During a short adjournment, Wilson then barked at a hapless court reporter who had shown up to the public gallery, which was otherwise populated with Wilson’s wife, Alison Greig, and Caroline Raphael. And no one else. Then he barked at me, to ‘tell your friend…’ referring to the journo. At which point I told him to knock it off.
For people who believe ’emotions are the cause of all disease’ they certainly get wound up.
For the record, I did not contact the press.
UM and the press
Also, I don’t ‘bring the press’. UM brings the press with their own behaviour. If the press show up to court, they’ve come to see the Esoteric show, not me.
It’s an interesting accusation from people bringing defamation claims. Think about it. If you have a good reputation and you’re seeking vindication, you’d invite the press yourself. You’d welcome the scrutiny. If you’re paranoid the press will side with the defendant, it suggests you may have some problems.
It’s also a curious move from UM – if they’re confident of triumph in NSW, why bring a second, very similar claim? In another state? Against a defendant they know is broke?
The other accusation from Team UM is that I ‘use’ the media. As if cooperating with the press is another of their capital crimes. Or reporting facts in the public interest is a problem… Only for UM it seems. They, on the other hand, have opted to use the courts – a public resource – open to all, including the press, to claim damages to their public reputations over my comments on their public behaviour. Yet, they seem to want to control how the media reports their use of that public facility.
Whether they like it or not, I filed a 157 page defence in Qld pleading particulars of admissable evidence of UM’s disreputable conduct. It’s a matter of public interest to be decided by the court, and the press is free to report. UM brought it.
When the judge listed an adjournment date, Wilson started on about my replies to Fletcher’s impossible legal demands and that I was late in fulfilling their wish list, and they were going to seek orders to make me produce stuff etc. etc. The judge told him he was welcome to make applications at the next listed hearing, next month, for which he’s set aside a whole day.
At that point I was able to stand up with my affidavit and I asked the judge if there was some way to seek leave from the court to comply with the NSW court orders without further unnecessary delays, because I’d copped over 100 pages of letters from Fletcher in the previous six weeks. The NSW orders predate any of that carry on. I’d been delayed in complying with the NSW orders by having to reply to a barrage of threats. I annexed all her letters and my replies to my affidavit to submit as evidence. If I can’t comply on time, any delay has been caused by her. The judge said under the scope of that day’s applications there was nothing he could do, but he told me I could file them in the court registry so they would be there ready to answer any applications. So I did.
In the video I read from one of Fletcher’s letters warning me off doing precisely that. Between 2nd and 5th of May, she wrote me letters threatening to seek orders in both states if I didn’t comply with her competing demands, and warning me not to raise the other proceeding in court in seeking extensions, because they are ‘irrelevant’ to each other. In celebration of UM’s conduct in these matters, I’m making the last of the letters available to the public. I was sent a matching one for the NSW claim. You can view it at this link: Fletcher Letter 4 May.
If it continues, I’ll publish all of them.
Wilson’s statement to the court that I’m being sued for ‘trolling’ makes me wonder about UM’s perceptions of defamation. I’m not aware of any civil offence of ‘trolling’. UM uses that term to describe online criticism of their public behaviours. They also call criticism ‘abuse’ and ‘bullying’.
In court, the judge told me he could understand why I have concerns. He also said he could understand why the plaintiffs feel hurt. I thought that was a fair and reasonable remark.
Of course the plaintiffs feel hurt. The problem for them, as I have pleaded in my defence, is the statements are substantially true. My statements are legally justified, made on reasonable grounds, based on proper materials and in the public interest. Truth is a complete defence to defamation. When truth hurts, you have a reputation problem of your own making.
If people could claim damages every time they’re feelings were hurt, we’d have to park a magistrate at everyone’s kitchen table.
To win damages for defamation, the court has to find that the published statements are false or made without reasonable grounds or with no basis in proper materials for comment. And then that the statements were read by enough people to warrant a damages award.
In general, if you publish things, people have a right to criticize or point out errors or misrepresentations. It’s called free speech. Same if you behave in any way that negatively affects or involves others. In essence, the law does not punish people for making criticism or for saying unkind things about unsound conduct.
The system however, punishes everyone by making it costly and extremely labour intensive to resolve defamation disputes.
More of the judge’s remarks & King Pyrrhus
The judge remarked on the enormous amount of paper already filed for the claim. Team UM wanted me to file an amended defence striking out a couple of paragraphs and the judge refused that request. He said there’d been too much paper filed already. He got Paula Fletcher to scribble out the paragraphs with her ballpoint pen.
It was a pity about me losing the application and all I could say to the judge was that I didn’t expect to be representing myself. I’d not been given enough notice and I was unprepared. He thought it was unusual to have counsel representing me without a solicitor and asked if counsel was representing me for free. I told him it was on a deferred payment basis. At that stage UM didn’t believe I have Mr Molomby on board.
They really thought I’d lose legal representation when I ran out of money.
They tried to get me to call Tom during the hearing to agree on a hearing date. He was in court and I couldn’t reach him. It didn’t seem to occur to them that he’s busy. With two days notice in what’s been a very busy time for him, it’s been difficult to reach him at all. That afternoon Wilson called Mr Molomby to confirm. They assumed I had lied to them and lied in court. To the judge’s face.
Putting ourselves in the judge’s position, judges don’t want to deal with the fumblings of unrepresented litigants – especially if they have counsel representing them, and haven’t been allowed opportunity to have them appear.
Having assumed I was unrepresented Team UM behaved opportunistically and aggressively, barraging me with unreasonable, error ridden demands. The evidence of that conduct is now filed in court.
In the comments below, UM Facts Team part timer, and Esoteric Breast whisperer Alan Johnston arrived to gloat about the ‘reality check’. From the people who quake at the thought of the Four Lords of Form. He must have only heard part of the story. Yes, I was ordered to pay costs of the application I failed at arguing, but the judge restricted those to Wilson’s appearance at the hearing. Wilson managed to argue to include the production of the affidavits used. That was considerably less than what they’d hoped for I imagine. Alan might not have been told that the conduct of Fletcher in trying to have my blogs shut down, and her involvement in the McIntyre bequest, as well as Wilson’s as director of the College of UM and member of the UM Facts Team are written into the defence, along with the conduct of Benhayon and the plaintiffs.
And Alan obviously hadn’t been told of the judge’s other remarks. The judge suggested to Wilson his clients might want to consider entering mediation with me. He said, (without assessing the merits of the claim, which can only properly be done at trial in view of all the evidence), there was no money in the damages. It would be a long, drawn out process, requiring a lot of work, and the only ones who’d get anything out of it would be lawyers. He mentioned a case where a damages award was swallowed by costs.
Incidentally, damages are estimated on the extent of publication. In this case it’s very limited. Damages are also reduced if any of the claimed defamatory imputations are found to be true. I’ve pleaded truth to all of them and provided particulars of admissable evidence.
The judge said at best it would be a Pyrrhic victory. It’s a term used a lot in litigation and it refers to cases where the cost of bringing an action is a great deal higher than anything gained in awarded damages. Historically, King Pyrrhus famously won a battle against the Romans, however, that one battle nearly wiped out his entire army. The Romans, of course, just brought in fresh reserves forcing Pyrrhus into retreat.
For me, the fresh reserves are more evidence and more public support.
The judge made it clear the proceedings won’t achieve anything, and suggested it would be better for everyone if we just got on with our lives.
The court, at any point in proceedings, can order mediation. Given that was only our first listed hearing, my guess is that will come sooner rather than later. My legal team have told me the court doesn’t want these claims to take up court time. Judges hate them. They tie up huge amounts of resources at enormous cost to taxpayers and achieve very little or less. From the court’s point of view, litigation should be undertaken as a last resort and litigants should attempt to resolve issues out of court. The fact UM have never attempted that – and in fact done the opposite, will work against them. If litigants refuse to behave reasonably in mediation or settlement negotiations, and continue to draw proceedings out, the court takes that into account in ordering costs.
Ironically, the paragraph UM brought to court to try and have me convicted of mentioning the public interest and the media, spells out the futility of the Qld case. In their wildest fantasies the best they might manage is to have a few tweets taken down that would have done minimal, if any, quantifiable damage to their reputations. That’s after months of legal work, weeks in court, huge cost to taxpayers and having their public conduct examined in full. The reality is they very seriously risk devastating defeat, with the public exposure that entails, and being ordered to pay my legal team’s costs. Which will be hundreds of thousands of dollars.
Victory for me will not be Pyrrhic at all. It’ll cost me a lot of time and inconvenience, but it will bring vindication and exposure of UM we have wanted for years. Exposing UM’s risks and harms is an important undertaking in the public interest. UM have actively bullied anyone who has attempted to expose or criticize them. They’ve tried to have me deregistered, arrested, mobbed and shamed. They’ve attacked and harmed people I care about. They’ve tried to wreck my livelihood and reputation, and now they’re having an equally futile plug at litigation. All of it has backfired. They’ve increased my profile and won me respect and support.
Their actions prove they are an organization that needs to be monitored.
They brought these claims. It’s not just my own reputation and my publications that I have a right to protect, it’s in all our interests that I defend. In full. In defending, we all win.
7 May – Staying alive
It’s been a challenging time with UM’s in house legal team bombarding me with legal requests that are simply humanly impossible to fulfil in the time frames they are demanding. It appears they made the demands under the false impression I had no legal representation. Either way, it’s an issue we intend to take up with the court.
I’m currently out of work, out of funds and have no income.
I was in court on Friday 5 May in Brisbane for a short hearing, with an adjournment until 2 June. It was an interesting interaction with Team UM, and I will post a longer, unofficial update video talking about that soon.
Please consider helping. Whatever you can afford or a small payment here and there will help keep the wolf from the door. Thanks.
I could use a hand with finding legal assistance if anyone has connections.
Contact me if you have any questions.