‘Complete vindication’: Nine wins defamation fight against high-profile surgeon

Celebrated orthopaedic surgeon Dr Munjed Al Muderis has lost his marathon defamation case against Nine, the owner of this masthead, over a series of reports alleging negligent surgery.

The victory for The Sydney Morning Herald, The Age and 60 Minutes, after the stories in late 2022 about his work with amputees, marks a milestone win for public interest journalism.

Al Muderis alleged in the Federal Court that the reports had conveyed a range of defamatory meanings, including that he negligently performed osseointegration surgery and that he provided inadequate aftercare. Osseointegration surgery involves inserting titanium pins into the residual bone of an amputated limb to enable a prosthetic to be connected.

Nine, the owner of the media outlets being sued, relied on contextual truth, honest opinion and public interest in its defence of journalists Charlotte Grieve, Tom Steinfort and Natalie Clancy.

Justice Wendy Abraham on Friday found Nine had established both contextual truth and the public interest defences, sinking Al Muderis’ lawsuit. As a result, the judge did not consider honest opinion.

“I accept the evidence of the journalists that they each held a subjective belief that the publications were in the public interest,” Abraham said.

“The positive media coverage his practice had enjoyed needed correcting, and the investigation revealed another side of his practice.”

Almost three dozen patients and 17 other healthcare providers were ushered into the witness box to explain what Nine’s lawyer, Dr Matt Collins, KC, described as “glaring examples … of negligence in surgery, in each case, with catastrophic results” during the lengthy trial.

Grieve said it was an important moment for investigative journalism and recognition of the courageous patients who had spoken out against their doctor.

“This judgment is a complete vindication of the brave patients who had the courage to speak out and an indictment on the doctor who went to war with the people he has a duty to protect,” she said.

“This is an important moment for investigative journalism, and I’m proud of everyone who has worked so hard to defend this important public interest investigation.”

Nine, through Collins, had argued Al Muderis had been incapable of admitting his errors and had left patients “devastated”.

“Our submission is that a surgeon who would treat people so callously, so appallingly … is not a surgeon who deserves a glittering reputation,” Collins said.

“[Al Muderis] is a surgeon whose malpractices and unethical conduct have left patients devastated and worse off than before they saw him; is a surgeon who has operated negligently; is a surgeon who has delivered substandard care, leaving patients to fend for themselves; is a surgeon who has not properly cared for his patients; is a surgeon who has made promises that he’s not delivered on; is a surgeon whose conduct at times has been appalling and beneath contempt.”

Al Muderis’ lawyer, Sue Chrysanthou, SC, had argued that Nine had unreasonably painted the surgeon as a “Dr Frankenstein”.

The case was one of the first major tests of the public interest defence for reporting, which allows media companies to argue they reasonably believed their journalism was published in the public interest.

Abraham concluded Nine had “established that the beliefs they held were objectively reasonable” in reaching her conclusion.

The surgeon previously called for the identities of confidential sources relied upon by Grieve to be unmasked, but he failed after a judge concluded revealing the sources did not outweigh the public interest in protecting their identities.

Abraham said she considered the evidence of 22 patients, who were presented to the court as case studies for osseointegration performed by Al Muderis between 2013 and the publication of the stories.

The evidence of four more orthopaedic patients factored into Abraham’s reasoning.

“Although [Nine] accepted Dr Al Muderis is, to many, an Australian hero who has devoted much of his life’s work to helping amputees walk again, they contended their investigation revealed there is a significant cohort of patients who are unhappy and negatively impacted by Dr Al Muderis’ services,” Abraham said.

Nine chief executive Matt Stanton said the decision was “vindication of our reporting and reinforces Nine’s longstanding commitment to investigative journalism”.

“Nine welcomes today’s judgment by the Federal Court to dismiss Munjed Al Muderis’s claims of defamation. The court has confirmed the stories published by The Age, The Sydney Morning Herald and aired on 60 Minutes have been successfully defended. Nine’s victory today on the basis of public interest is a significant moment in Australian defamation case law,” Stanton said.

Leah Mooney was not an osseointegration patient, but she was called to give evidence by Nine in late 2023 about two surgeries Al Muderis had performed on her in Sydney.

Al Muderis had left a broken drill bit in her leg in the 2011 operations, triggering a chronic bone infection and then a years-long lawsuit and battles with regulators.

On Friday, she celebrated the ruling against Al Muderis with her husband, Tim, saying it was “a long time coming”.

“It’s a feeling of relief and happiness. It’s been a long battle and to now think, ‘My god, I’m at the end of it,’” Leah said.

University of Sydney media law professor David Rolph said the “comprehensive victory” for the newspapers showed the new public interest defence can succeed, where notoriously flimsy other defences fail in defamation.

“The old statutory qualified privilege defence was notorious in NSW, for many decades, for being unsuccessful and very difficult for media companies to rely on,” Rolph said.

“One of the most important things in the [2021 defamation reforms] was parliament signalling support for public interest journalism distinctly.”

NSW has been known as a playground for defamation lawyers, but high-profile losses, including that of war criminal Ben Roberts-Smith at the hands of Nine, have triggered a decline in filings.

Rolph said each case turned on its own evidence, but such failures caused a “chilling effect on prospective plaintiffs”.

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