Surgeon fails in second bid to unmask Nine journalist’s sources

Orthopaedic surgeon Munjed Al Muderis has failed in a second bid to uncover the identity of a Nine investigative journalist’s confidential sources used in a story that criticised his medical practice.

Al Muderis filed two subpoenas in the Federal Court in October that sought to obtain unredacted copies of documents and communications between health professionals and Age journalist Charlotte Grieve.

Dr Munjed Al Muderis and his barrister Sue Chrysanthou, SC (left), and partner Claudia Roberts.Credit: Dion Georgopoulos

The surgeon also sought leave from the court to file five additional subpoenas seeking similar documents and communications.

If released, the documents would have identified a total of seven confidential sources.

On Tuesday, Federal Court judge Wendy Abraham struck out the subpoenas on the basis Al Muderis was trying to circumvent the court process to unmask the identity of the sources, and allowing the subpoenas to proceed would bring the administration of justice into disrepute.

“The issue of the subpoenas seeks to do indirectly what is prohibited by an order of this court,” Abraham said in her judgment. “The use of the subpoenas in the circumstances of this case serves to bring the administration of justice into disrepute.”

Al Muderis is suing The Age, The Sydney Morning Herald and 60 Minutes over stories published in 2022, which he claims convey the defamatory imputation that he performed osseointegration surgery negligently and used high-pressure sales tactics, among other allegations.

The surgeon previously called for the identities of confidential sources relied upon by Grieve to be unmasked, arguing the public interest in disclosure trumped the likely adverse effects on the sources if their identities were revealed.

But in December, Federal Court judge Robert Bromwich ruled the public interest in disclosing the identity of the sources did not outweigh the public interest in maintaining their confidentiality, and upheld Grieve’s rights to protect them.

Lawyers for Nine argued Al Muderis was trying to circumvent this ruling with his subpoenas by seeking to obtain documents that would unveil the identity of sources specifically protected by Bromwich’s orders.

They argued that because of the earlier ruling, the subpoenas were oppressive and an abuse of process.

Al Muderis’ legal team said the documents were relevant and had a genuine forensic purpose to their case.

But Abraham found there was no apparent relevance to the communications between the health professionals and Grieve other than trying to identify them as sources.

Investigative journalist Charlotte Grieve.Credit: Simon Schluter

“[Al Muderis’] submissions demonstrate that these subpoenas are squarely directed to revealing the identity of certain confidential sources,” she said.

“Given the circumstances in this case, the issue of these subpoenas is an abuse of the court’s process. There is no other way to protect the interests of justice but to strike out the subpoenas issued and to refuse to grant leave to the remaining subpoenas.”

The remainder of the defamation trial will be heard next month.

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