UM leader should not be punished by costs: Barrister
UPDATE, 3.30pm: THE barrister for Universal Medicine founder Serge Benhayon has argued any order of costs should not be a form of punishment.
Mr Benhayon's barrister Nicholas Olson said indemnity costs - such as those Esther Rockett's legal team are seeking - are a form of compensation rather than being punitive.
But he said "merely losing the proceedings" was not "reason in itself to award indemnity costs".
Mr Olson agreed an affidavit from Ms Rockett - who Mr Benhayon had attempted to sue for defamation in these proceedings - laid out an "acrimonious relationship between the two parties, coming mainly from one side".
Ms Rockett's barrister Tom Molomby had told the court of "uncooperative" correspondence from the plaintiff's legal team, including on the day of Ms Rockett's father's funeral.
Mr Molomby had argued, in part, Mr Benhayon's economic advantage to the bankrupt defendant meant he could hinder the resolution of the proceedings.
But Mr Olson questioned how much weight should be given to these arguments.
"It was not conduct which was calculated to delay the proceedings in any way," he said.
Mr Olson said some evidence which Mr Benhayon's legal team refused to supply as part of document discovery was already accessed - in part - by Ms Rockett.
This included two levels of "esoteric healing" manuals, chakra-puncture manuals, and some extracts from Mr Benhayon's various books along with a number of "healing symbols".
Mr Olson said Mr Molomby's argument that the plaintiff's lawyer's actions were "oppressive" was "not an appropriate characterisation of the conduct".
"An order for indemnity costs … would be punishment for the conduct of (Mr Benhayon's former solicitor) Ms Fletcher," he said.
"It would be the conduct of (Paula) Fletcher, not the conduct of Mr Benhayon."
Mr Olson said a suggestion Mr Benhayon was "pulling the strings" on another defamation case against Ms Rockett in Queensland was "simply untrue in fact".
In relation to a settlement offer Ms Rockett made in February, 2016, Mr Olson said the defendant's proposed apology was not appropriate.
He said it was reasonable for Mr Benhayon to refuse this offer, considering what he knew of the strength of defence case at the time.
The court heard the defence case had not been made available to Mr Benhayon at the time of this offer.
This offer included a provision that Ms Rockett would forego costs the court had ordered due to a prior delay, the court heard.
"In effect, Mr Benhayon is told there is a defence, or there's almost a defence, but here's an offer, without the benefit of seeing what would be disclosed by the defence," Mr Olson said.
"Mr Benhayon (was) not in a position to assess the value of those costs."
He said this "walk-away offer" involved "no real element of compromise".
Mr Olson said his client was plainly seeking "vindication" over the allegations, and had not felt this proposed apology, which was "two and a half lines", offered that.
Mr Molomby said Mr Benhayon's counter-offer was seeking "more than an apology", but to "humiliate" Ms Rockett.
"An apology does imply what happened shouldn't have happened," Mr Molomby said.
"(Mr Benhayon) wanted the humiliation of Ms Rockett.
"He didn't really want vindication.
"He wanted to do that to her."
He said an apology Mr Benhayon's legal team had suggested in their counter-offer would go so far as to criminally implicate the respondent.
Justice Julia Lonergan said she would not hand down her judgment on the matter of costs today.
Today's hearing is ongoing.
UPDATE, 12.30pm: ESTHER Rockett's barrister has told Sydney Supreme Court of "extremely unacceptable behaviour" from Serge Benhayon's legal team.
Defence barrister Tom Molomby QC told the court Mr Benhayon's legal team had been uncooperative through the process of document discovery.
Mr Molomby referred to an instance where Ms Rockett received an 85-page list detailing Mr Benhayon's discovery documents.
He said this was a contents list only; the actual documents were "thousands" of pages.
"Ms Rockett wanted the discovery items numbered to match the list," Mr Molomby said.
"She left a portable hard drive at the Universal Law office.
"She had to label it manually.
"That's oppressive and, in my submission, intended to be so."
Justice J Lonergan agreed it was "standard practise" for discovery documents to be supplied as a labelled bundle.
She asked whether this issue had been considered by the court, but the court heard no assistance was provided by Mr Benhayon's team.
Mr Molomby said in the instance of some documents, including Mr Benhayon's books, the plaintiff refused to "donate" them to the defendant.
She was told she could attend the Universal Medicine office to view them, or could purchase them.
Justice Lonergan agreed these actions posed a delay, but questioned Mr Molomby's assertion this was "oppressive".
"That's delay and that's probably professional rudeness, but I don't know if it counts as oppressive," she said.
She asked Mr Molomby whether the suggestion Ms Rockett "ought to pay for the items" would both pose an economic impost on the bankrupt Byron Bay woman, while leaving her open to being "considered a devotee" of Universal Medicine.
Mr Molomby only pressed that these actions caused delay and frustration for his client.
The court heardUniversal Law solicitor Paula Fletcher had been representing Mr Benhayon during this time, both in the Sydney proceedings and other defamation proceedings which had been brought against Ms Rockett in a Brisbane court.
The court heard the Queensland proceedings involved associates of Mr Benhayon and Mr Molomby argued this was used as a tool to undermine his client's defence in NSW by stretching her energies across the two matters.
The Northern Star understands the parties in the Queensland matter have agreed to settle outside of court.
Ms Rockett was self-represented for much of that time.
The hearing continues.
UPDATE, 11.30am: COUNSEL for Esther Rockett has asked that all of her costs be paid by Serge Benhayon.
Defence council Tom Molomby has asked Justice Lonergan to also make an order for interest to be paid on legal bills already paid by Ms Rockett.
Mr Molomby also submitted Mr Benhayon had a "superior financial position" to the defendant, allowing him the means "to drag the other party out and exhaust them".
He has told the court of two settlement offers made by Ms Rockett.
The first, made to Universal Law on December 21, 2015, Justice Lonergan questioned as it had a three day deadline.
Another, made the following February, was met with a response from Mr Benhayon stating that he would only settle if Ms Rockett announced the imputations were "lies" in open court.
Mr Molomby argued this was not reasonable and Justice Lonergan agreed.
The hearing continues.
Original story: A FINAL hearing of a defamation case brought by Universal Medicine founder Serge Benhayon against blogger Esther Rockett is due to begin soon.
The hearing, before Justice J Lonergan, is expected to begin after 10am.
The Northern Star understands Justice Lonergan may reserve final judgment on the matter to a later date.
Today's hearing comes after a six-week defamation trial before a four person jury, who found many of Ms Rockett's claims to be true, including that Mr Benhayon is the "leader of a socially harmful cult".
It's expected some legal issues, costs and a bid for Ms Rockett to be able to use documents tendered to the court to garner potential legislative action against Universal Medicine will be discussed.
The hearing is taking place at Sydney's Supreme Court.