Reasonable belief: The first successful application of the Public Interest defence in Australia

Al Muderis v Nine Network Australia Pty Limited [2025] FCA 909

What you need to know

• The public interest defence has been successfully relied on for the first time in the Federal Court defamation claim brought by high-profile orthopaedic surgeon Dr Al Muderis.
• The decision provides a robust endorsement of the defence's application where a publication is underpinned by a thorough, careful, and well-documented process, even if not every aspect is perfect.
• The Court confirmed that the relevant “reasonableness” enquiry is not directed to the publisher's conduct but rather the reasonableness of their belief that the publication was in the public interest, which can be supported by evidence of the nature and extent of their investigation into the matters prior to publication.
• The law does not impose "an additional criterion or standard" that the journalist "do everything right" to successfully rely on the public interest defence.

What you need to do

The decision provides a useful roadmap for all publishers seeking to rely on the public interest defence. This includes:

• maintaining and retaining detailed records relating to the investigation, including documenting the basis for the belief that the publication is in the public interest;
• using judgment to determine what parts of a publication are necessary to serve the public interest, and which are not;
• carefully considering the reliability and verification of sources and ensuring that information from confidential sources is corroborated by other on-the-record evidence;
• taking care with the language used in the publication and ensuring that it distinguishes between suspicions, allegations and proven facts; and
• where possible, approaching the subject of the publication and include their response.

Background

Dr Munjed Al Muderis is an orthopaedic surgeon specialising in a particular type of surgery for amputees, called osseointegration. Dr Al Muderis brought a defamation claim against Nine Network Australia, Fairfax Media Publications, The Age, and three journalists, Charlotte Grieve, Tom Steinfort and Natalie Clancy, in relation to seven television, video and newspaper publications published in September 2022.

The publications stemmed from a joint investigation between 60 Minutes, The Age and the Sydney Morning Herald into negative patient experiences associated with Dr Al Muderis' practice, alleging inadequate patient care, unethical conduct, and improper patient selection.

Dr Al Muderis alleged 75 defamatory imputations were conveyed by the publications, only some of which were found to be carried by the Court (largely those which related to Dr Al Muderis' general practice as a surgeon, and were not narrowly focused specifically on his conduct in the operating theatre).

The respondents relied on several defences: justification (substantial truth), contextual truth, public interest and honest opinion. All respondents pleaded the public interest defence, pursuant to section 29A of the Defamation Act 2005 (NSW) (the Act) in relation to each publication.

The public interest defence, which was introduced as part of the suite of defamation reforms in 2021, had not previously been successfully relied upon by any defendant in defamation proceedings. The defence was first tested in Russell v Australian Broadcasting Corporation (No 3) and was unavailable to the respondents in that case, on the basis that their subjective belief was not found to be reasonable in all the circumstances (that is, it failed on the third element of the defence).

The Public Interest Defence

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

1. that the matters concerns an issue of public interest, which is determined objectively;
2. that the respondent believed the publication of the matter was in the public interest. In referring to Russell, Abraham J supplemented that this element 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 respondent's 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.

Application

In this case, the dispute 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 publications as made, not in the imputations as alleged by the applicant.

The Court accepted the evidence of the individual journalists that they each held a subjective belief that respective publications were in the public interest, based on their belief that the information available to the public at the time about Dr Al Muderis' practice was critically incomplete. The Court accepted evidence that many of Dr Al Muderis' patients had experienced poor and inadequate patient care and that the way in which Dr Al Muderis had conducted his practice, were matters of public interest of which prospective patients should be informed.

The Court also accepted that the subjective beliefs of the respondents were objectively reasonable, based on the following:

• the breadth and depth of the investigation, which involved speaking to approximately 76 sources (including patients, medical professionals, and regulatory bodies) and reviewing thousands of pages of documents;
• the corroboration of information from confidential sources by on-the-record sources;
• the editorial care exercised, including the decision not to publish unsubstantiated or excessively damaging allegations;
• the responsible approach to verifying information, testing the credibility and motivations of sources, and seeking corroborative material; and
• the inclusion of Dr Al Muderis’ responses in the publications and a genuine attempt to put the substance of the allegations to him (even though not every allegation was put to him).

The Court rejected Dr Al Muderis' allegations that the journalists acted with malice and improper motive, finding that these assertations were without foundation as there was no evidence in the course of the trial of conduct that could be “remotely described as a malignant, dishonest or malicious campaign” against Dr Al Muderis.

The public interest defence was successfully established by the respondents.

Reasonableness of belief not conduct

The Court did not accept the applicant's approach towards contesting the availability of the public interest defence by attacking the reasonableness of the journalists’ conduct, rather than addressing the legal test under section 29A of the Act. The Court emphasised that the relevant enquiry is not whether the journalists acted as a reasonable person might have in their position, but whether they as individuals reasonably believed that publication of the material was in the public interest.

The Court was at pains to distinguish the public interest defence from the defence of qualified privilege, which does consider the reasonableness of the publisher's conduct, and suggested the applicant was conflating the two defences. The Court noted that the public interest defence was not introduced as a mere extension of the qualified privilege defence, but has its own distinct test.

Whose belief is relevant

The Court clarified that the relevant belief for the public interest defence in relation to corporate entities is that of the journalist and not, as contended by the applicant, the people responsible for the corporate publisher's decision to publish the publications. The Court confirmed that the focus is on the state of mind of those employees or agents "substantially responsible" for the publication of the matters and found the journalist respondents in this case to be those requisite people.

No requirement to "do everything right"

The Court rejected the argument by Dr Al Muderis that the defence required the journalists to “do everything right” or to conduct investigation and reporting perfectly. Instead, the focus is on the reasonableness of the belief in the public interest, not on the absence of flaws or errors in the process. Flaws in a matter or in the conduct of the investigation will not necessarily preclude the application of the defence.

In relation to Ms Grieve's deletion of certain records and communications during the investigation, Justice Abraham found this conduct to be “plainly imprudent” but found that it did not amount to dishonesty, nor did it undermine the journalist's credibility or ability to rely on the public interest defence. Noting that in this case the deletions occurred prior to the legal proceedings and were explained as a “knee-jerk reaction” to protect sources (not a deliberate strategy to destroy evidence), the Court nevertheless advised against deletion of records and suggested in other circumstances it could have more serious consequences.

Confidential sources

The journalists, particularly Ms Grieve, relied on a significant number of confidential sources, including medical professionals, former patients, and colleagues of Dr Al Muderis. The applicant criticised this reliance, arguing that it prevented proper testing of the evidence and undermined the credibility and reliability of the publications.

Earlier in these proceedings, Dr Al Muderis applied to have the identities of some confidential sources disclosed. However, he was unsuccessful, with the Court finding that the public interest in non-disclosure outweighed the applicant’s interest in disclosure, particularly given the adverse effects feared by the sources and the broader public interest in the media’s ability to access and communicate information from such sources.

The Court acknowledged that Ms Grieve relied on a large number of confidential sources, however noted that there was a comparatively "extremely large" number of total sources relied on, many of whom spoke on the record. The Court accepted that there were legitimate and genuine reasons why some of the sources sought confidentiality, including fear of legal action by Dr Al Muderis, reputational damage, or professional consequences.

An important aspect of the Court's acceptance of the confidential sources related to the fact that the information provided by such sources was not relied upon in isolation. The Court found that:

• the information from confidential sources used in the publications was corroborated "in one way or another" by on-the-record sources, documentary evidence, or expert opinion;
• no material allegation in the publications relied solely on information from a confidential source. The journalists’ preference was to have sources speak on the record, and where this was not possible, they sought corroboration or supporting material; and
• the respondents took care to assess the credibility and reliability of all sources (confidential sources and those that spoke on the record), and to test their accounts where possible.

The applicant argued that the inability to cross-examine confidential sources was a denial of procedural fairness and accordingly it would be imprudent for the Court to accept the respondents’ evidence. The Court rejected this argument, noting that the applicant had stated he could infer the identity of many confidential sources and otherwise had the opportunity to challenge the credibility of the sources to some extent. The applicant did not identify any specific instance where the inability to test a confidential source’s evidence led to unfairness or unreliability in the overall findings.

The Court also acknowledged that that public interest journalism often depends on the ability to protect sources, especially where matters of significant public concern are at stake and sources may otherwise be unwilling to come forward.

Change in circumstances

The Court also considered whether any change of circumstances after publication could have caused the respondents to lose the defence for ongoing online publication. It found that no such change had occurred; the journalists continued to hold a reasonable belief in the public interest of the publications, and any factual errors exposed at trial were minor and did not undermine the substance or the public interest in the publications. It was not the case here, as in English cases referred to by Dr Al Muderis, that there had been a significant change in circumstances (e.g. the release of the findings of an investigation by a relevant authority).

Other defences

Justification

The respondents pleaded the defence of justification under section 25 of the Act to the majority of the imputations alleged by Dr Al Muderis, contending that the main allegations were substantially true. The Court emphasised that the focus is on the “sting” of the imputation and not on every detail, affirming Sutherland v Stopes [1925] AC 47 at 78-80: “The plea must not be considered in a meticulous sense. It is that the words employed were true in substance and in fact”.

However, because the defence of justification can only succeed where all the imputations are substantially true, and the respondents had not pleaded the defence to four of the imputations, the defence could not succeed. The respondents did not ultimately argue this defence in their closing submissions, relying instead on a contextual truth defence.

Contextual truth

The respondents pleaded the defence of contextual truth under section 26 of the Act, contending that the publication carried imputations that are substantially true (contextual imputations), and that any remaining defamatory imputations did not further harm the applicant’s reputation because of the substantial truth of the contextual imputations. The Court affirmed that, following recent legislative amendments, contextual imputations can include those pleaded by the plaintiff, as was the case here.

The Court found that the respondents had established the substantial truth of a significant number of the imputations, particularly those relating to misleading patients, poor patient selection, improper sales tactics, negligence in post-operative care, prioritising money and fame, mistreating staff, and unethical conduct. The Court accepted that the evidence demonstrated a pattern of conduct by Dr Al Muderis that justified the core allegations made in the publications and that the cases produced by the respondents were not isolated or anomalous.

In finding that the respondents succeeded on this defence on all but one publication (in relation to none of the pleaded imputations had been found to be conveyed), the Court accepted that given the seriousness and breadth of the contextual imputations that were established as substantially true, any additional harm to Dr Al Muderis' reputation from the remaining imputations was negligible.

The Court rejected the applicant's argument that for the purposes of determining additional harm to Dr Al Muderis' reputation, each “sector” of reputation, such as professional competence, honesty, business conduct, should be considered separately. The Court held that the relevant conduct all related to Dr Al Muderis’s practice as a surgeon and that it is the cumulative effect of the established contextual imputations that is to be considered.

The Court also rejected Dr Al Muderis' contentions that the relevant weighing exercise was between the contextual imputations and the defamatory imputations as a whole, stating that in determining whether the defamatory imputations do not further harm the applicant's reputation, the Court considers the facts, matters and circumstances relied upon to support the substantial truth of the contextual imputations rather than the terms of the imputations.

Honest Opinion

While this defence was pleaded, the Court did not consider it necessary to consider in the face of the success of the other two defences.

Takeaways

This decision settles and extends the position in Russell that an error on the part of the journalist will not render the belief in the public interest in publishing the story unreasonable. In contrast to Russell, here the Court found that the respondent's subjective belief was reasonably held as a result of the detailed and thorough investigation conducted.

The decision is an important acknowledgement by the Court that publishers do not need to conduct themselves perfectly to avail themselves of this defence, a stark contrast to the history of the statutory qualified privilege defence, where any perceived failure by a publisher or journalist has often resulted in the defence being defeated. It affirms the focus of the defence is on the reasonableness of the subjective belief actually held by the journalist, not the objective reasonableness of their conduct, and that this reasonable belief is by reference to the publications as made, not the imputations the applicant alleges, in circumstances where pleaded imputations can diverge significantly from what was intended to be conveyed by a publisher.

Journalists and media organisations should take heed of Justice Abraham's guidance in this judgment and the guidance previously given in the Russell case as to how to improve their chances of succeeding in the defence:

• maintain detailed records, including records of the journalists' belief that publication would be in the public interest and reasons as to why they held that belief;
• don't get rid of any records (identifying information in relation to confidential sources can be redacted if necessary, and is preferable to deleting records);
• use judgment to determine what parts of the story actually need to be told to serve the public interest, and cut what does not serve that purpose;
• take care in the language chosen (avoid colourful language if it is apt to be misleading);
• carefully consider the reliability of all sources;
• ensure verification and corroboration is sought in relation to all information provided by sources (even if it is not possible ultimately to obtain it for some reason, it is important to try);
• in particular in relation to confidential sources, ensure that information provided by these sources is corroborated by other on-the-record evidence, as well as verifying the information provided by the confidential source to the extent possible;
• ensure publications distinguish between suspicions, allegations and proven facts; and
• where possible, approach the subject of the publication and include their response.

Authors: Robert Todd, Senior Consultant; Nick Perkins, Counsel; Imogen Loxton, Senior Associate and Alyssa Younan, Graduate.

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• Wrong Vehicle: Russell v Australian Broadcasting Corporation (No 3) and the new defence of public interest (6 November 2023)