In Al Muderis v Nine Network Australia Pty Limited [2025] FCA 909, Justice Abraham dismissed the defamation claim brought by prominent orthopaedic surgeon Dr Munjed Al Muderis against Nine Network and journalist Chris Masters in respect of a series of television broadcasts and online articles concerning the surgeon's professional conduct.
The Defences Established
Justice Abraham found that two defences were established: contextual truth, in respect of a number of the imputations conveyed; and the new public interest defence introduced by the Stage 2 defamation reforms (section 29A, Defamation Act 2005).
The Public Interest Defence — Analysis
On the public interest defence, her Honour held that the subject matter of the publications — the professional conduct of a prominent and publicly respected surgeon who had performed thousands of procedures on veterans and the general public — was plainly a matter of public interest.
Nine had conducted an extensive investigation, obtained supporting evidence from multiple independent sources, sought comment from the applicant, and published his response. The defence was established.
The public interest defence under section 29A of the Defamation Act 2005 (introduced by the Stage 2 reforms) requires the defendant to establish that:
- The statement complained of was, or was part of, a statement on a matter of public interest; and
- The defendant reasonably believed that publishing the statement was in the public interest.
The defence is modelled in part on the English Reynolds qualified privilege and the Jameel v Wall Street Journal Europe formulation. Unlike the common law qualified privilege, it does not require the defendant to have a duty to publish or the recipient a corresponding interest to receive the information. Instead, the focus is on the public interest in the subject matter and the reasonableness of the defendant's belief.
Responsible Journalism — Key Factors
Justice Abraham's application of the defence highlighted several factors relevant to responsible journalism:
- Extent of investigation: Nine conducted an extensive investigation over a substantial period, obtaining evidence from multiple independent sources including former patients, medical colleagues, and regulatory bodies.
- Pre-publication inquiry: Seeking comment from the subject of a report and including their response is a significant factor in establishing reasonable belief in the public interest.
- Public significance: The professional conduct of a surgeon who had performed thousands of procedures, including on veterans, was plainly of public concern — not merely interesting to the public.
- Reliability of sources: The reliability and independence of the sources relied upon is relevant to the reasonableness of the defendant's belief.
Implications for Plaintiffs
This decision has important implications for prospective plaintiffs considering defamation actions against media organisations. The new public interest defence provides a significantly broader shield for investigative journalism than the prior common law qualified privilege. Plaintiffs must carefully assess whether a publication is likely to attract the defence before commencing proceedings.
The decision also demonstrates the continued relevance of contextual truth as a primary defence in complex multi-imputation matters. Where some imputations are justified by contextual truth, the overall sting of the publication may be defensible even where individual imputations cannot be justified.