Nine journalist not required to disclose sources, judge rules

A Nine journalist will not be required to name 13 confidential sources she spoke to for a story that criticised the medical practice of renowned orthopaedic surgeon Munjed Al Muderis after a judge found she was entitled to journalist privilege.

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.

Munjed Al Muderis is pursuing a defamation case over reports from 2022.Credit: Dion Georgopoulos

He called for the identities of confidential sources relied upon by Age investigative journalist Charlotte Grieve to be unmasked, arguing the public interest in disclosure outweighed the likely adverse effects on the sources if their identities were revealed.

The sources included “high-profile surgeons” who alleged Al Muderis took an aggressive approach to surgery and rarely turned patients away, and said this was an open secret in the profession.

One surgeon claimed Al Muderis performed surgery on a homeless and psychotic patient who 72 hours after the operation was found walking around St Leonards train station on an infected stump. Another said a procedure had been performed on an anorexic patient who was a pathological exerciser and wanted it to be performed so she could continue running.

Grieve swore in her affidavit that almost everyone who agreed to talk to her was extremely cautious and expressed concerns about Al Muderis’s “litigious and vindictive nature” when she gave them assurances of confidentiality.

Journalists and their employers cannot be compelled to reveal the identity of informants to whom they have promised confidentiality, under a provision known as “journalist privilege” that is designed to support the public interest in the communication of facts and opinions by the news media to the public.

But the presumption can be overridden if a judge finds that the public interest in disclosure outweighs the adverse effects on a particular source, or the public interest in the free flow of information to the news media.

Al Muderis claimed he already knew the identity of seven of 13 confidential sources, so there was a diminished public interest in denying him being able to confirm his suspicions. He argued that Grieve was not a witness of credit and that her affidavit was inconsistent, unbelievable and bizarre.

Age investigative reporter Charlotte Grieve.Credit: Simon Schluter

But Federal Court Justice Robert Bromwich said these pejorative characterisations were overblown and that Grieve had withstood cross-examination better than many more seasoned witnesses he had observed over many years.

“I consider Ms Grieve to be shown, not just by what she said and how she said it, but by the description of what she did and the application of logic, reason and context to be an earnest, intelligent and conscientious person,” Bromwich said.

In regards to Al Muderis’s claim that he already knew the identity of several sources, Bromwich countered that the rationale for journalist privilege was that sources may dry up if confidentiality was not maintained, even if the person seeking their disclosure already knew the substance of the information they sought.

“There is a world of difference between a source being identified by other means, and a journalist being compelled to reveal it,” he wrote.

Ultimately, the public interest in disclosing the identity of the sources did not come close to outweighing the public interest in maintaining their confidentiality.

“The public interest in non-disclosure is overwhelming and would have met and exceeded a far stronger public interest in disclosure than was present in this case.”

Al Muderis was ordered to pay Nine’s costs. The remainder of the defamation trial will be heard in March.

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