Esther Rockett legal defence August 2017 updatePosted: August 13, 2017
13 August 2017 – *Decision on June interlocutory hearing in Raphael and Karam v Rockett *Update Benhayon v Rockett – trial date, discovery of documents *Fundraising update * Background of cases.
Please don’t read any further if you have not contributed to my survival fund! (Unless you’re also broke.) The money is not going to pay lawyers. It is to enable me to do the job of a solicitor on two very large defamation cases and prevent me from becoming homeless. Please help lighten the load for all of us and make sure my full defences get to trial.
Bank transfers to Westpac BSB 734 063 Acc. No. 654 143
Or use the Paypal button top of page
Thank you to all of you who have helped. Some of you have done so several times and be assured these legal defences will help a large number of people and may go on to impact legislation in a number of areas of public policy.
Raphael & Karam v Rockett update – recent ruling in Queensland proceedings
Updating from last month, on June 23 the Qld district court heard two applications brought by Caroline Raphael and Ray Karam. An application to strike out a large portion of my contextual truth defence and an application for costs.
The contextual truth defence is just one of five defences I am pleading in the Queensland proceedings. It was worth contesting, but even if they’d been successful, I have four further defences I could use for the publications – one of which is the truth defence. I have pleaded and will take evidence that all my statements are substantially true, therefore no defamation has occurred.
Raphael and Karam, represented by Paula Fletcher of Universal Law solicitors and UM’s barrister, Charles Wilson had originally listed 6 applications for hearing but abandoned four in the days before we appeared on 23 June.
On 10 August Judge Ryrie handed down her decision. Team UM had a partial win. They succeeded in striking out 7 out of 46 contextual imputations, but I managed to keep the rest. The strike-out of those 7 will make very little difference to my defence. UM also applied for costs for the four other applications they listed and were awarded none.
Her Honour also refused to hear over half their contextual truth argument. The majority of their claim arose from an email I sent to Ballina councillors. The plaintiffs claim it was read by one person, the Ballina Mayor, David Wright. Because the email was ‘wholly published’ in NSW, Her Honour ruled that the Queensland District Court has no jurisdiction to hear it (under section 11 of the Defamation Act of Queensland). The Qld court only has jurisdiction if something is published in Queensland.
Jurisdiction of Qld
We argued something similar in February without success. We argued that the whole claim was improperly filed in Queensland. However, Her Honour came at it from a different angle. The tweets were read by people in Qld, according to UM, but not the email. Her remarks included that it was not evident from the February ruling that the judge ‘accepted, even though he has dismissed the defendant’s application, that the whole matter was properly pleaded.’ Her Honour maintains that bringing the email before the Queensland court is a ‘defective pleading’.
I’d call that a Pyrrhic victory for UM – it was more like a loss. For our side, given the type of interlocutory applications UM made and the way the proceedings have been conducted so far, we’re satisfied that we successfully defended two applications to strike out major parts of the defence. An application to strike-out parts of the truth defence was one of those abandoned by Team UM the day before the hearing.
In other words, Team UM busted their boilers spamming me with legal demands for three months pretty much for nothing. As I pointed out in previous updates, they knew I was under court orders in NSW to do some very time consuming work, yet Paula Fletcher of Universal Law persisted in making legal demands that were simply impossible to deliver, accompanied by threats to seek court orders. Team UM filed and listed the 5 May hearing without negotiating a mutually suitable time for counsel to appear, and I had to appear on two days notice and represent myself, while attempting to comply with court orders issued in another state. In spite of the judge’s remarks at that hearing, Team UM carried on with more of the same until the June hearing. All they managed to achieve was to create work for themselves in writing unnecessary letters and filing unnecessary applications – that amounted to nothing.
Her Honour’s judgment is not publicly available. It was an oral ruling and we received a transcripted copy. I’m only able to quote small portions due to strict copyright around documents produced by the court.
Her Honour’s remarks about her decisions regarding costs indicate she had viewed all the evidence about the conduct of the proceedings . For example, UM complained I made one ‘churlish’ reply to one of Fletcher’s two dozen or so overheated letters. Her Honour agreed ‘churlish’ may be a correct interpretation. However, she acknowledged I had fulfilled the requests. I just hadn’t done so within the time frames Fletcher demanded. In refusing to award costs to Raphael and Karam in that instance, she said ‘the amount of the particulars that was requested at the time it was, coupled with the ‘agitation’ of [Fletcher’s] letter of the 7th of June… clearly shows that the Defendant was saying she simply needed more time to get it done. Clearly she did.‘
In another instance Her Honour refused to award them costs for one of their abandoned applications because it ‘has to be looked at in the context of this case, where the defendant was self-represented, [and] has in fact also managed to answer that application as well at short notice, one not flagged in front of Judge Everson‘.
Team UM even applied for an award of costs for one of their errors. ‘…no costs should be awarded against the defendant simply because there was an oversight by the plaintiffs in respect of it. Therefore, no order as to costs.‘
What’s next in Queensland?
For those of you asking, we shall see. It depends how Team UM reacts. And reactive they are. Their claim is now limited to six tweets. All this trouble and expense for six tweets. And according to the plaintiffs, the only people who read them are a few UM associates who are on the record before and since calling me a liar and a troll. They don’t have a claim if there’s no evidence of damages arising from those four tweets. What they feel from their innermosts to be damages is not admissable evidence.
Apart from striking out the seven contextual imputations my defence won’t change. If anything I’ll add to it with Karam’s advocacy for UM about the Converys Lane DA, and the public statements from Alison Greig about Caroline Raphael’s interactions with the NSW Psychology Council. There’s also the problem of UM’s legal representatives being witness to matters in issue in the proceedings, which is a conflict of interest. In other words, their claim is headed where it was always going. Nowhere. Just more resolutely.
No matter what they try next, we have a plan – a solid legal strategy. There’s always a plan. And it’s possible a QC will appear for me at the next hearing.
Benhayon v Rockett update – NSW Supreme Court
Trial date from 3 September 2018
A trial date for Benhayon v Rockett has been set down in the Supreme Court, Sydney for three weeks from 3 September 2018 – a year from now.
Both sides had asked for a trial of four to six weeks, seeing Benhayon made such an expanded claim and I filed a comprehensive defence of truth to meet it. There is a ton of evidence to get through, and of course I have a right to bring a full defence. However, as I’ve said before, the courts don’t want these kinds of proceedings eating up masses of resources. Justice McCallum ruled on the trial date and length of trial in June, and the decision has been published online. From Her Honour’s decision:
DEFAMATION – Civil Procedure Act 2005 (NSW), s 62(3) – where parties’ estimate for length of trial disproportionate to the interest at stake – power to limit the time that may be taken by the hearing…
Having regard to the fact that each of the parties is an individual and mindful of the likely cost of a hearing of that length …
…I do not think this Court can on any analysis warrant the allocation of a period of up to six weeks for a hearing of this kind. Were the hearing to take that long, the costs would inevitably be vastly disproportionate to the interest at stake, bearing in mind the cap on general damages under the Defamation Act 2005 (NSW), being $389,500. Caselaw NSW
When Her Honour remarks ‘each of the parties is an individual’ I believe she’s making a distinction between defamation claims against big media companies where the extent of publication is large, and damage to reputation is correspondingly large.
I don’t think the limited time for trial is any impediment to my defence. It will just mean that we will give evidence in a more efficient way, and really, a lot of my defence is in the form of documents anyway – many of them published by his nibs himself. Judge and/or jury will have a lot of reading to do – or listening. As one of my defence barristers said to me a while back, ‘just play that audio‘. Now we have video as well.
Does UM get what defamation is?
Judging by commentary from the congregation, UM appears to still believe they can sue people for saying stuff they don’t like. On the Astral Plane it’s much more difficult to succeed in a defamation action than that.
So this is a good time to remind UM – who are diligently copying every word I write, so they can scurry behind the fortress and bitch about us in the safety and comfort of their airless ‘community’ – defamation proceedings are not criminal proceedings. It’s a civil action. The plaintiffs are claiming I have damaged their reputations with statements I’ve published about their public conduct. If the statements I made are found to be substantially true, or they are opinions or comments based on stuff the plaintiffs actually said or did, there is no defamation. According to the law, a person’s reputation can’t be damaged by statements about conduct that is disreputable. The person behaving disreputably has done any damage themselves.
I am not on trial for ‘trolling’ or ‘criminality’. I can’t be ‘removed from society‘ by a defamation action. The law allows all of us to publish statements people don’t like, and it’s important that it does – otherwise corruption and lousy behaviour go unchecked. UM is permitted under the law to publish their mad ravings, just as we’re permitted to throw off at them. It’s when people publish damaging falsehoods about a person that they become legally liable for damages.
Defamation law was established to protect reputation from false allegations. That’s all. It allows free speech, particularly on matters of interest to the public. The Esoteric Sons of God continue to label me a liar, but I’m taking to court documents and witnesses to prove the truth of all the allegedly defamatory imputations. UM, however, have no documents or witnesses to prove the allegations they’ve made about us. Evidence to be put before the court will show this.
Discovery – Serge in resistance part two
Last month I updated on Benhayon’s resistance to complying with court orders requiring him to disclose and make available all documents relevant to facts in issue in the proceedings.
During the time Paula Fletcher was giving me ‘agitation’ for being unable to keep up with her unreasonable demands in the Queensland proceedings, I gave discovery of 2,400 documents and provided 65 pages of answers to interrogatories. I might have been late, but I fulfilled my obligations two and half months ago. In contrast, five months after the court orders were made, Benhayon is yet to disclose all documents under the orders. I’ve had to write two lengthy letters twice spelling out the civil procedure rules to the legal professionals who represent him, and nominating a large amount of documents that he has omitted. There’s no excuse for omissions when he is required to give discovery of documents that are kept or stored by the people running his operation. It will not be accepted by the court if he claims he or his staff have misplaced or destroyed documents relevant to facts in issue, particularly operational and official matters. Of the documents I’ve received so far, some have been edited, and someone has simply taken a black marker pen and blacked out large amounts of information without explanation or notice to me in others. It’s not on.
Remember Benhayon’s statement from June 2014?
“There is nothing like shutting down lies by allowing full transparency into one’s affairs. This I have done in every case and in every one of their accusations.
Had I taken the legal route, an easy win on all counts, I would then be accused of using wealth to shut down my detractors. Hence, and instead, it has been wiser to welcome the investigations and actually assist them to go further.
As I knew would be the case, every investigation has revealed a completely transparent, highly ethical outfit, and we have ended up receiving very positive feedback from the Government agencies concerned. UM website
Well, this is Serge’s chance to demonstrate publicly, through the courts, via proceedings he himself instigated, ‘full transparency’ and assist us with the investigations he says he welcomes. After all, his legal claim alleges reputational damage. He has to therefore show the court that he is reputable, and that his public statements are true. He needs to demonstrate he is credible.
Watch this space for further updates on the discovery tug of war, and some Esoteric revelations about other irregularities in the proceedings so far.
For now I’ll leave you with a couple of gems from Paula Fletcher’s long list of excuses:
We are instructed that there are no documents recording communications with or about Judith McIntyre and the McIntyre estate, gift and bequest.
No documents that concern the woman who gave and bequeathed Serge $1.4m? He’s deleted his emails he reckons. In loving memory…
And this response to my first reminder of his obligations for disclosure. Benhayon was founding director of the College. He resigned directorship in August 2012:
Our client is currently making a search for documents recording the receipt of gifts or contributions to himself or his interests or accounting for the use of such gifts and will include any such documents (if extant and in his possession) in the amended list of documents, noting that, as regards College of Universal Medicine, documents in his possession do not include ‘financial records’ by operation of s 198F of the Corporations Act 2001.
Funny how section 198F of the Corporations Act says the opposite. Paula. See paragraphs 2-5. ‘A person who has ceased to be a director of a company may inspect the books of the company (including its financial records) at all reasonable times for the purposes of a legal proceeding…This right continues for 7 years after the person ceased to be a director of the company.’ The right extends to copying the documents.
None of this will look particularly Glorious in court, and if UM are looking to drive their claims into the ditch, they’re going about it the right way.
Background of claims
Benhayon v Rockett
November 2015, Benhayon filed his claim in NSW Supreme Court Sydney for ‘aggravated damages’ for a blog post I wrote November 2014, three comments I made on that blog and one tweet.
Benhayon’s legal team consists of his in house solicitors, Universal Law of Mullumbimby, with a respected Sydney Senior Counsel (SC). Last year Benhayon applied to have my contextual truth defence struck out. After an argument at hearing in May by Mr Matthew Richardson, his application was refused. Read the decision on the NSW Caselaw site.
September 2016 Benhayon escalated the claim, tripling its size. Mr Tom Molomby SC joined my legal team and we filed a full, 95 page defence at the end of November. We are now in the process of giving discovery of documents. Benhayon is yet to answer interrogatories.
A trial date has been set for 3 September 2018 for three weeks.
Raphael and Karam v Rockett claim background
On 22 December 2016, two close associates of Serge Benhayon filed a defamation claim against me in Queensland District Court, Brisbane. Caroline Raphael is a psychologist who works with Benhayon at Universal Medicine’s Goonellabah headquarters. Ray Karam is a small business owner who describes Benhayon as a ‘brother’ and ‘best friend’. Karam ran for a seat on Ballina Shire Council and for Mayor of Ballina last year.
Ray and Caroline are suing me for an email read by Karam’s friend, David Wright, Mayor of Ballina, plus six tweets. They are represented by Universal Law solicitors and UM’s in house barrister and College of UM charity director Charles Wilson.
I filed a 157 page full defence on 24 March. As detailed above, UM suceeded in striking out 7 of 46 contextual imputations at hearing in June.
Defence logistics & funding
I am representing in person (without a solicitor) in both states. I exhausted all my own funds in defending the Benhayon proceedings. I am, however, represented by very high calibre counsel, Mr Tom Molomby SC and Ms Louise Goodchild, and as I updated last month, a QC and his junior colleague in Queensland have accepted the brief. They know I have no funds and no assets and can’t pay legal bills. They will charge their fees at the end of proceedings, and take their fees from any award of costs.
Some other barristers have also shown interest and are willing to pitch in if needed on the same or similar terms.
I’m determined to get my defences a fair hearing, and so is my legal team. The court will comprehensively examine a vast range of UM’s misconduct, which is what all of us want. Serge is on the record saying he welcomes a full investigation of his operations.
I have some of the best legal representation money can buy and I’m no longer paying legal fees. Please let that sink in.
This is our shot. We cannot afford to lose this opportunity. I’m working full time on my defences with no income. I need public support to keep me alive, fed, and with a roof over my head while I continue this fight. I’m hoping to get back to work as soon as possible, and I intend to apply to the court in Qld to allow me time to do so. A lot of people have been adversely affected, and a lot more will be if UM is not exposed. A lot of people complain bitterly about UM, but relatively few have helped support my defence. If I’m made homeless, it could cause further delay and make getting full defences to court a lot more difficult. Please contribute!
Please donate to my survival fund!
Bank transfers to Westpac BSB 734063 Acc. No. 654143
Or use the Paypal button top of page
Our Mission – a summary of UM, issues of concern and regulatory actions so far
Contact me if you have questions or tip offs.