By: Richard Leder and Isabelle Ferrali

Al Muderis v Nine Network Limited

In a landmark decision, the Federal Court of Australia has sent a clear message to plaintiffs: think very carefully before embarking on a defamation suit.

Background and details of the Al Muderis v Nine Network Limited case

Last Friday afternoon, 8 August 2025, Justice Wendy Abraham found that Nine successfully established both the contextual truth and public interest defence in the case of Al Muderis v Nine Network Limited.

The case is one of the first major tests for the public interest defence and investigative journalism.

The case concerns orthopaedic surgeon, Dr Munjed Al Muderis and stories published in late 2022 by The Sydney Morning Herald, The Age, and 60 Minutes relating to his work with amputees. Dr Al Muderis alleged that the publications included defamatory material. Nine argued the defence of contextual truth was established and that they reasonably believed their journalism was published in the public interest.

In support of Nine’s claims, 17 health care providers and almost three dozen patients appeared in court to explain the results of Dr Al Muderis’ negligence, the result of which was a lengthy and protracted trial. Nine’s lawyers described the evidence as ‘glaring examples…of negligence in surgery, in each case, with catastrophic results’. Justice Abraham considered the evidence of 22 of those patients and 4 additional orthopaedic patients when making her decision (Complete vindication: Nine wins defamation fight against high-profile surgeon’, The Age).

Justice Abraham found that Nine ‘established that the beliefs they held were objectively reasonable’ and that ‘the positive media coverage his practice had enjoyed needed correcting, and that the investigation revealed another side of his practice’ (Ibid.).

Future claimants will do well to note the combination of defences in this case, namely, the contextual truth and public interest defence, as well as the magnitude of evidence presented in support of Nine’s claims.

Legal framework: Public interest defence under the Defamation Act 2005

The Defamation Act 2005 allows a defendant to avoid liability for defamation if they can prove the defamatory matter concerns an issue of public interest and they reasonably believed the publication was in the public interest. This defence, established under Section 29A, is designed to protect responsible communication on matters of public importance (Defamation Act 2005).

In making its decision, the court takes into account the following factors:

  • The extent to which the publication distinguishes between suspicions, allegations and proven facts.
  • The integrity of the sources.
  • Whether steps were taken by the journalist to verify the information.
  • Whether the plaintiff’s response was included in the publication.
  • The importance of freedom of expression in discussions of issues of public interest.

Implications for defamation claims and investigative journalism in Australia

Al Muderis v Nine Network Limited paves the way for the application of the public interest defence for reporting and reinforces Australia’s longstanding commitment to investigative journalism. The findings contrast those found in Russell v Australia Broadcasting Corporation (No 3) (2023) FCA 1223, where the Court found that while the journalists believed that the publication of the matters complained of was in the public interest, this belief was not objectively reasonable (Ibid. [336]). In contrast to Al Muderis v Nine Network, the Court considered that the ABC journalists in Russell v Australia Broadcasting Corporation (No 3) (2023) did not sufficiently investigate and corroborate the allegations and failed to distinguish between suspicions, allegations, and proven facts (Ibid. [333]).

The Al Muderis v Nine Network Limited case, in conjunction with Russell v Australia Broadcasting Corporation (No 3) and Lehrmann v Network Ten Pty Ltd (2024), sends a firm reminder to plaintiffs to carefully consider the circumstances in which they sue for defamation. In the Russell v ABC case, it was made clear that ‘public interest’ extends beyond what the public needs to know and includes matters relating to the public life of the community, and discussion regarding the conduct of a person or institute that invites public criticism (Ibid. [319]). In the Lehrman case, Justice Michael Lee found that the truth defence was made out, leading to the dismissal of his defamation claim. As stated by Justice Lee, ‘having escaped the lions’ den, Mr Lehrman made the mistake of going back for his hat’ (Lehrmann v Network Ten Pty Ltd [2024] FCA 369 [1091]). He added, ‘Mr Lehrman is not entitled to the vindication of his reputation. The respondents, however, are entitled to vindication by the entry of judgment on the statement of claim’ (Ibid. [1095]).

These cases signal to all plaintiffs to tread carefully in pursuing a defamation claim and to always remember that the process seeks not to reinstate justifiably damaged reputations but rather, protect the truth.

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