Rightsizing the reputations of shonks, shysters and war criminals comes at a cost

It’s probably too much to expect that the latest victory of investigative journalism over medical shonks, war criminals and rapists will finally end the defamation wars.

History suggests these cases will continue to plague the courts as long as wealthy people fantasise about rebuilding their tattered reputations by suing journalists, and plaintiff lawyers remain happy to accommodate them.

Federal Court Justice Wendy Abraham has not yet ruled on who will pick up the bill after celebrity surgeon Munjed Al Muderis comprehensively lost his defamation trial – though she suggested it should be him. Whoever pays, his lawyers will still trouser their cheque.

Ben Roberts-Smith’s solicitor walked away with millions from a case that left his client proven (to the civil standard) to be a war criminal. The same lawyer, Sydney litigator Mark O’Brien, was also paid to argue a case that cemented his client Bruce Lehrmann’s reputation as a rapist.

In Al Muderis’ case, the barrister du jour was Sue Chrysanthou, SC.

I have an interest in this case – I was the editor who helped shepherd young investigative reporter Charlotte Grieve’s meticulously researched articles into the world in 2022.

And I was watching as Grieve starred in a place that many more grizzled reporters have never dared step – the witness box.

Grieve was there for six days – a record for an Australian journalist – withstanding the worst that Chrysanthou could throw at her.

The reason Grieve was there was because this masthead pleaded the relatively new “public interest” defence to the accusation that we’d defamed Al Muderis.

In the arcane world of defamation law, a media organisation can defend its journalism by proving the truth of all the imputations that can be drawn from its reporting.

We did that resoundingly by bringing 35 patients and family members, plus 17 healthcare professionals, to establish that Al Muderis was, in fact, a shonk.

Justice Abraham found he had engaged in unethical conduct, prioritised money, fame, reputation and numbers over his patients, provided negligent post-operative care, used improper sales tactics and misled his patients, among other sins.

The media organisations also argued that the story was in the public interest – a new provision introduced to the defamation law in 2021 and, until now, basically untested.

In theory, this defence allows journalists to avoid the difficulty of having to prove – several years after the event and to the satisfaction of a court – that almost every element of their story is objectively true. The new public interest defence allows us to argue that we “reasonably believed” publishing the stories was in the public interest.

Simple? Not so fast. You might think it’s obvious that exposing a doctor who left patients with maggots infesting their wounds, and whose colleague then encouraged them to spray it with a household air freshener to deal with the smell, was in the public interest.

There was no doubt this is what Al Muderis did – in court he argued it was a “known risk or complication” of his style of surgery, and not as bad as it sounded.

No, for the public interest defence to be successful, the court needed to find that, at the time she reported these things, Grieve and her colleagues genuinely believed that their journalism was in the public interest, and also that their belief was objectively reasonable. A big factor was that their journalism needed to be responsible.

To that end, all Grieve’s correspondence with sources, collaborators and editors, including me, was shared for public scrutiny, and open for Chrysanthou’s cross-examination. And that’s why Grieve was in the stand, exposed to a barrage of accusations.

In the barrister’s hands, Grieve’s journalism was a “malignant, dishonest and malicious campaign” of “character assassination” against her surgeon client.

The young reporter – who is so good she has already won a number of awards and has earned a permanent place in The Age’s investigative unit – was unqualified to be an investigative journalist, lacked expertise, and demonstrated embarrassing misunderstanding of the medical issues that resulted in a “terrible, terrible lie” being published.

Chrysanthou went on to say Grieve and her colleagues had “no concept of ethical practice as journalists or as human beings”, and did not appear to comprehend the meaning of truth.

At one point, the barrister (who is soon giving a lecture at Melbourne University in defence of free speech and against cancel culture) said Grieve “took delight” in publishing an article about an insurer revoking Al Muderis’ medical cover. This story, said the barrister, had “real-life impacts, not just on my client, but on his patients”.

One would hope it had – and that, perhaps, it saved one or two of them from the real-life impact of maggoty wounds, extra amputations and a life of pain and despair.

Barristers act on their client’s instructions. But watching on as the grilling continued, I couldn’t help feeling a sense of irony that it was Grieve’s reasonableness that was being questioned.

For six days, Grieve fronted up for this treatment. And the judge ultimately agreed that Grieve’s belief in her journalism was reasonable and in the public interest – that before her stories, the public understanding of Al Muderis’ reputation had been “critically incomplete” and, for the sake of his future patients, that needed correcting.

Patients should be making their decisions with both sides of the story, Grieve had argued – an argument that, according to Justice Abraham, was “objectively reasonable”.

That’s what good, tough, investigative journalism does. In the court, several of Al Muderis’ former patients watched on, their eyes filled with tears. They said later they felt vindicated after a decade of trying to get their story heard.

As for the defamation law – this was the first big test of the public interest defence. It’s held up. It works. Peter Bartlett, the doyen of Australian defamation lawyers and a long-time representative of Age journalists, hopes it will have a lasting effect.

“You’d imagine the plaintiff lawyers would have to advise potential plaintiffs of the significant risks they face from this new defence,” he said.

And Chrysanthou herself might now need to revise her opinion, expressed as she represented Lachlan Murdoch against Crikey a few years ago, that the media had been “sold a pup” with the public interest defence.

The other thing that’s held firm is investigative journalism – the public interest role it plays, and the courage of the journalists and media organisations who publish these difficult stories.

But if every story is going to require reporters to spend six days in the stand enduring an insulting earbashing from the well-heeled representative of well-heeled clients, then perhaps Chrysanthou is right after all.

If this is how hard it is to argue good journalism is in the public interest, then media defendants still need to be careful as they do their job of rightsizing the reputations of wealthy people like Munjed Al Muderis and Ben Roberts-Smith.