Benhayon v Rockett (No 8)

The jury found that 12 imputations were carried by the first matter complained of being:

The jury found the following imputations carried by the other matters complained of:

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:

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.

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.

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.

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.

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.

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.

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.

The questions remaining to be decided after the jury's findings under ss 30 and 31 of the Defamation Act are:

By reason of the jury's decisions, there must be a verdict for the defendant in relation to matters complained of 14 and 16.

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.

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.

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.

I therefore enter verdicts for the defendant in relation to matters complained of one to three inclusive and six to twenty-two inclusive.

The exhibits may be returned.

Interlocutory and other judgments delivered in these proceedings to date may now be published on Caselaw.

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.

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.

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.

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.