When Does Right to Report Outweigh Reputation? Channel Nine’s Landmark Defamation Public Interest Defence Against an Orthopaedic Surgeon

By Demi Swain Summer Pitts

9 October 2025

When does right to report outweigh reputation?

Al Muderis v Nine Network Australia Pty Limited [2025] FCA 909 is a landmark Federal Court defamation decision in which the Court dismissed Dr Munjed Al Muderis’ claim, upholding both the contextual truth defence (section 26) and the public interest defence (section 29A) under the Defamation Act 2005 (NSW) (Act).

The case is the first time the public interest defence has succeeded in Australia. The decision provides some clarity as to how Courts may apply the new statutory defence in complex defamation litigation, especially in the context of high profile persons and investigative journalism.

What were the facts of this case?

Dr Al Muderis, a high-profile orthopaedic surgeon specialising in osseointegration procedures, commenced defamation proceedings against Nine Network, associated media outlets and journalists (together, the Respondents) concerning a 60 Minutes episode promotion and episode entitled “Sneak Peek: Cut to the Point” and “Cut to the Point”, and subsequent related online articles published in 2022.¹

The publications related to patients’ negative experiences who had undergone surgery with Dr Al Muderis. The publications also related to Dr Al Muderis’ practice generally, including allegations that he had engaged in improper sales tactics, misled patients and downplayed the risks of osseointegration surgery, did not provide proper aftercare, and prioritised money over patient care.²

Dr Al Muderis alleged 75 defamatory imputations were conveyed by the publications,³ only some of which were found by the Court to be conveyed.

What were the defences in this case?

The Respondents relied on several defences: justification (substantial truth), contextual truth, public interest and honest opinion.

What were the defamatory imputations and were they conveyed?

The Court found that a number of the imputations pleaded by Dr Al Muderis were “general” in nature⁴ and were conveyed by the publications.⁵

The Court distilled 9 defamatory ‘stings’ of the pleaded imputations as follows:

1. improper sales tactics;
2. misleading osseointegration patients (false promises, downplaying risks and complications);
3. poor patient selection (i.e. negligent/inadequate pre-operative assessment of suitability);
4. negligent post-operative care;
5. illegal surgery in the united states;
6. prioritising money, fame, reputation and numbers.
7. mistreating staff;
8. lied to journalists; and
9. unethical conduct.

The Respondents successfully defended those imputations.

What is the public interest defence?

The public interest defence, which was introduced as part of the suite of defamation reforms in 2021,⁶ had not previously been successfully relied upon by any defendant in defamation proceedings.

Most notably, the ABC failed in its the public interest defence of Heston Russell’s (former Major and Commando Officer within the Special Operations Command of the Australian Defence Force) defamation proceedings in 2023.⁷

The defence is designed to protect the responsible communication of matters of public importance and promote one of the original objects of the Act: ensuring that there is a balance between protecting an individual’s reputation and not placing unreasonable limits on freedom of expression (particularly on matters of public interest and importance).⁸

Her Honour Justice Abraham set out the test for the public interest defence under section 29A:⁹

1. that the matters concern an issue of public interest, which is determined objectively;
2. that the Respondents believed the publication of the matter was in the public interest (that is established by adducing evidence that the publisher turned their actual or attributed mind to the issue and did hold the relevant belief); and
3. that the Respondents’ belief that the publication of the matter was in the public interest was reasonable. This calls for an assessment of the honest and reasonable belief in the truth of what is published; not the actual truth or falsity of the allegations concerned.

As was considered by Justice Lee in the Russell decision, ‘“Reasonableness” is open-textured and value-laden; both a “morally freighted concept”’.¹⁰ It depends upon all the circumstances of the case. However, as a general rule, a defendant’s conduct will not be reasonable unless the defendant had reasonable grounds for believing the imputation, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue, and sought a response from the defamed person.¹¹

Was the public interest defence successful?

The case centred on whether the Respondents reasonably believed that the publications were in the public interest (it was not in dispute that the publications concerned an issue of public interest).

Justice Abraham emphasised that the relevant belief was in the content of the published material itself, rather than in the imputations alleged by Dr Al Muderis.¹²

The Court accepted evidence that numerous patients of Dr Al Muderis had received substandard care, and that the manner in which he conducted his practice raised issues of legitimate public concern, particularly for potential future patients.¹³

Additionally, the Court found that the journalists’ subjective beliefs were objectively reasonable, based on the following factors:¹⁴

• the comprehensive nature of the investigation, which involved interviews with approximately 76 sources, including patients, healthcare professionals, and regulatory bodies, and a review of thousands of pages of documentation;
• corroboration of information from confidential sources by named, on-the-record sources;
• careful editorial judgment, including the decision to exclude unverified or unduly damaging allegations;
• a responsible approach to verifying facts, assessing source credibility and motivations, and seeking corroborative evidence; and
• the inclusion of Dr Al Muderis’ responses within the publications, along with a genuine effort to put the substance of the allegations to him (even if not every individual allegation was specifically put to him).

The Court accepted the evidence given by each journalist that they genuinely believed their respective publications were in the public interest, based on their belief that prior media coverage of Dr Al Muderis had been largely favourable or one-sided, meaning that the publications in question were an attempt to provide balance and correct an incomplete narrative.¹⁵

Importantly, the Court distinguished the question of the Respondents’ conduct from their belief: the test is whether the belief was reasonable, not whether every investigative step was faultless.¹⁶

What is contextual truth?

In addition to the public interest defence, the Respondents were also successful in their contextual truth defence.¹⁷

Contextual truth arises where:

1. one or more of the imputations are proven to be substantially true; and
2. the remaining imputations do not further harm the plaintiff’s reputation.¹⁸

(The application of the contextual truth defence was recently analysed in Demi Swain and Eliza Fletcher, “Millions in Costs and a Reputation in the eyes of the Court left in Tatters: The Legal Fallout from Ben Roberts Smith’s Failed Appeal” (Bennett, 3 June 2025)

In the Decision, the Court accepted that the contextual imputations were substantially true, based on evidence from multiple patients, expert witnesses, healthcare providers, and documentary records detailing adverse patient experiences, inadequacies in disclosure, aftercare, and other issues.¹⁹

Because the contextual imputations were sufficiently proven and severe, the Court found that any remaining imputations (those not proven or not contextual) could not cause further harm to Dr Al Muderis’ reputation beyond what had already been established.²⁰

The Court rejected Dr Al Muderis’ contention that, in assessing any additional harm to his reputation, distinct aspects of his reputation, such as professional competence, honesty, and business conduct, should be evaluated separately.²¹ The door was left open by reason of the manner in which Dr Al Muderis had pleaded “general” imputations.²²

The Respondents contended that ordinary reasonable readers and viewers would understand references to “surgery” and like terms as extending to all aspects of Dr Al Muderis’ surgical practice, not merely performance “in the operating theatre”. This broader interpretation encompassed “pre-operative considerations and consultations and post-operative care, including patient selection, disclosure of risks, misleading patients, making false promises, abandoning patients and negligent post-surgery care”.²³

This enabled the Respondents to adduce evidence proving the substantial truth of his professional conduct, not just his technical surgical skills.²⁴

Does this apply in Western Australia?

Whilst the public interest defence is yet to be adopted, a defence of contextual truth is available to those defending defamation proceedings in Western Australia.²⁵

What are the key findings arising from the Decision?

The Decision illustrates several important factors, including:

• The public interest defence can succeed (if the defendant can demonstrate a reasoned, albeit imperfect, belief in the public interest of the matters the subject of the publication) in those States and Territories in which the reforms have been implemented.
• To enliven the defence of public interest, defendants face scrutiny as to the quality of the investigative process to determine whether a belief was reasonable. Again, whilst the process may not be faultless, deficiencies in the process must not be so serious as to render the belief unreasonable.
• The contextual truth defence continues to be a potent defence, when used correctly. This is especially the case where a plaintiff pleads imputations as generally, or broadly, opening the door for defendants to lead wide-ranging evidence of conduct beyond that specifically referenced in the publication.
• A plaintiff must therefore be cautious in pleading broad imputations to avoid the risk of broad factual evidence being introduced.
• A plaintiff must also be cautious in being selective in their pleaded imputations: commencing defamation proceedings where there are serious imputations that can be proven opens the door for a defendant to defend the case with the contextual truth defence.

 

1. Al Muderis v Nine Network Australia Pty Limited [2025] FCA 909 (the Decision) [1], [4].
2. Decision [3].
3. Decision [4], [5].
4. Decision [219].
5. Decision [8(1)], [100].
6. The reforms have been introduced in every State/Territory save for Western Australia and Northern Territory.
7. Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223 (Russell).
8. Russell, [266]; Explanatory Note to the Defamation Amendment Bill 2020 (NSW).
9. Decision [2483] – [2488].
10. Russell, [325].
11. See Russell, [329].
12. Decision [2487].
13. Decision [2632].
14. Decision [2700] – [2713].
15. Decision [2671] – [2679]; [2748].
16. Decision [2501].
17. Decision [2466], [2479].
18. Act, s 26; Defamation Act 2005 (WA), section 26.
19. Decision [2466] – [2479].
20. Decision [2475].
21. Decision [2462] – [2463].
22. Decision [219].
23. Decision [244].
24. Decision [2464].
25. Defamation Act 2005 (WA), section 26.

Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.