Al Muderis v Duncan (No 3) - [2017] NSWSC 726

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Al Muderis v Duncan (No 3) [2017] NSWSC 726
Hearing dates: 24 May 2017
Date of orders: 07 June 2017
Decision date: 07 June 2017
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   Judgment for the plaintiff against each of the first and second defendants;

(2)   The first and second defendants shall jointly and severally pay the plaintiff damages in the amount of $320,000;

(3)   The second defendant shall, in addition to any sum paid pursuant to the order in [2] above, pay the plaintiff damages for defamation of a further $160,000;

(4)   Interest shall be calculated on the foregoing amounts at 3% from 30 November 2015 until the date of judgment and shall be payable, in relation to each award of damages above by the defendant or defendants responsible, under the above orders, for the damages;

(5) Pursuant to s 40 of the Defamation Act 2005, the first and second defendants shall, jointly and severally, pay the plaintiff his costs of and incidental to the proceedings, assessed on an indemnity basis;

(6)   The plaintiff is directed, after submissions on injunctive relief, to file and serve a minute of order to be entered by the Court. Such order shall include the words, naming each of the defendants, that the person is liable to imprisonment or to sequestration of property if the acts required to be done within the specified time are not done within that time and that the defendant and each of them is subject to imprisonment or to sequestration of property if they perform acts or engage in conduct restrained by the terms of the judgment or fail to act as required;
(7)   The parties have liberty to deal with the form of any orders proposed, the question of interest and the question of costs by the making of any different, special or other order as to any and all of the foregoing. Further, the plaintiff has liberty to apply for any order relating to the third defendant, Instra Corporation Pty Ltd. Such application may be made, within five days of the date of this judgment by email directly to the Court’s Associate with a copy to the other party. Any response from the defendant to be made by 4.00pm, Friday, 16 June 2017.
Catchwords: DEFAMATION – assessment of damage – highly respected orthopaedic surgeon – continual vilification by former patient and family – need for injunctive relief – aggravated damages
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Defamation Act 2005
Cases Cited: Al Muderis v Duncan [2016] NSWSC 1726
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Torts Reps 81-246
Carson v John Fairfax & Sons Ltd & Slee (1993) 178 CLR 44; [1993] HCA 31
Church of Scientology of California Incorporated & Another v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344
Crampton v Nugawela (1996) 41 NSWLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 726
Decision Date: 07 June 2017

CaseChat Overview and Summary

In the Federal Court, Al Muderis, a highly regarded orthopaedic surgeon, brought an action against a former patient, Duncan, and his family, seeking relief from ongoing defamation. The central dispute centred on the allegation that Duncan, after a surgical procedure performed by Dr Muderis, publicly defamed the doctor through disparaging comments and social media posts. The court was tasked with determining the extent of the damages caused to Dr Muderis' professional reputation and assessing whether an injunction and aggravated damages were warranted. The legal issues revolved around the quantification of the harm to Dr Muderis' reputation, the adequacy of the injunctive relief sought, and the appropriateness of aggravated damages given the persistent nature of the defamation.

The court meticulously evaluated the impact of the defamatory statements on Dr Muderis' professional standing, considering his reputation within the medical community and the public. It was established that the defamatory comments were widespread and had significantly tarnished his reputation. The court also examined the adequacy of the injunctive relief requested to prevent further defamation and whether the measures proposed were sufficient to protect Dr Muderis' professional interests. Additionally, the court deliberated on the necessity of aggravated damages to compensate for the distress and humiliation caused by the persistent vilification. The court found that the defamation was both severe and continuous, justifying the award of aggravated damages in addition to the injunctive relief.

Following its detailed analysis, the court ruled in favour of Dr Muderis, awarding him aggravated damages and granting the sought injunctive relief. The court determined that the persistent and public nature of the defamatory statements warranted a strong protective measure and a significant compensatory award. The final orders included the imposition of an injunction to prevent further defamation and the payment of aggravated damages to Dr Muderis, reflecting the severity and impact of the defamatory acts. This decision underscores the court's commitment to protecting professional reputations and providing adequate redress for defamation victims.

Orders