Al Muderis v Nine Network Australia Pty Limited (No 4)
[2024] FCA 148
•18 March 2024
FEDERAL COURT OF AUSTRALIA
Al Muderis v Nine Network Australia Pty Limited (No 4) [2024] FCA 148
File number(s): NSD 917 of 2022 Judgment of: ABRAHAM J Date of judgment: 18 March 2024 Date of publication of reasons: 7 May 2024 Catchwords: EVIDENCE – defamation proceeding – where respondents led evidence of the applicant’s bad reputation – whether evidence is admissible
HELD – evidence is admissible
Legislation: Evidence Act 1995 (Cth) s 135 Cases cited: Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 15 Date of hearing: 12 October 2023; 13 October 2023 Counsel for the Applicant: Ms S Chrysanthou SC, Mr N Olson and Mr T Smartt Solicitor for the Applicant: HWL Ebsworth Lawyers Counsel for the Respondents: Dr M Collins AM KC, Mr D Roche SC and Ms C Roberts Solicitor for the Respondents: Thomson Geer Lawyers ORDERS
NSD 917 of 2022 BETWEEN: MUNJED AL MUDERIS
Applicant
AND: NINE NETWORK AUSTRALIA PTY LIMITED
First Respondent
FAIRFAX MEDIA PUBLICATIONS PTY LIMITED
Second Respondent
THE AGE COMPANY PTY LIMITED (and others named in the Schedule)
Third Respondent
RULING MADE BY:
ABRAHAM J
DATE OF RULING:
18 MARCH 2024
THE COURT RULED THAT:
1.The evidence at transcript pages 2282 and 2285 is admissible.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)ABRAHAM J:
These reasons relate to the ruling made on 18 March 2024 at transcript page 3680.
On 12 October 2023, Dr Collins AM KC asked Dr Papadimitriou the following question in examination-in-chief (at transcript page 2280):
Doctor, in the circles in which you move, what is Dr Al Muderis’ reputation as a surgeon?
Objection was taken to the question, and it was agreed between the parties that the answer to the question could be given and the matter argued at a later stage. The answer was (at transcript page 2282):
Amongst my colleagues, the orthopaedic surgeons, he has a poor reputation. He is considered to lack judgment, empathy and, on several occasions, felt to have made poor decisions. It’s felt that, through his conduct – many people believe it’s an unethical or unprofessional conduct to - - -
Further argument was heard the next day.
The applicant’s objection was primarily on the basis that the matter was not pleaded in mitigation of damages. It was submitted that the evidence could not be led in the absence of that pleading. The respondent submitted that pleading was not required, and that in any event, no prejudice had been occasioned by their failure to do so. I note that although the applicant submitted that he was taken by surprise by the evidence, there was no submission made that he had been prejudiced. Nor could there be. A significant number of witnesses had given evidence in his case as to the applicant’s reputation (primarily by the tender of affidavits). During the argument each party referred to various authorities said to assist their respective positions.
I note two further contextual matters.
First, although it may be accepted that the respondents did not generally cross-examine the many reputation witnesses on the question of reputation, the respondents did cross-examine Dr Tetsworth. That cross-examination, recorded at transcript pages 2097 to 2098, raised the issue of the applicant having a mixed reputation among surgeons, with some surgeons not holding him in high regard. Those questions were not objected to. The questions were such that if they were considered inadmissible, it is expected they would have been objected to.
Second, Dr Papadimitriou was cross-examined by the applicant’s counsel as to why he had not contacted Dr Al Muderis before conducting surgery on Ms Mooney. The following exchange occurred at transcript page 2285:
Sure. I mean, in an emergency situation, where you are going to perform the surgery that day, it may well be sufficient to trust in what the patient has said. But in circumstances where you have more time available, would it not be prudent to ensure, before you operate on a person, to obtain clinical information from previous medical professionals that would be relevant to the care? ‑‑‑ Depends whether you think that’s going to enhance or detract from your knowledge.
What do you mean detract? How can more information detract from your knowledge?‑‑‑Well, if you – if you’ve heard from the patient a certain story and you can see that she has been told things in an attempt to dismiss her concerns and to, if you like, cover up a complication, you don’t expect to ring that person and then get the truth from them. You expect them to actually be evasive. You expect them to put you on the wrong track. So I didn’t have any feeling that I was going to get any extra information.
Doctor, you had met Ms Mooney that day, on 1 September? ‑‑‑ Mmm.
And are you saying seriously that you took her word as so truthful that you formed the view that speaking to my client to get more information would detract from the care that you had give? ‑‑‑ But I had already formed an opinion on your client, as well, and I was factoring that in.
Right. So you were factoring in your personal bias against my client and you let it interfere with the care you gave to this patient? ‑‑‑ Not personal bias. You have a understanding of patients that you’ve seen before, circumstances that they’ve found themselves in, things you’ve seen and heard about people, and that’s exactly how you form a character judgment.
No application was made by the applicant at that time for the Court to rule that that evidence was not admissible or that it should otherwise be excluded. That was the position until this Court raised with the parties the question of its relevance in relation to this argument about reputation. The applicant then contended that the evidence ought to be ruled to be either inadmissible as it was not responsive to the questions; or excluded under s 135 of the Evidence Act 1995 (Cth). Contrary to the applicant’s submission, the evidence was responsive to the questions that were asked. It was relevant to the line of questioning where the applicant directly challenged the witness as to his failure to do something. In my view, the evidence is admissible, and there is no proper basis to exclude it under s 135.
The impugned evidence about reputation, at transcript page 2282, is related to the evidence at transcript page 2285. It is to the same effect. Of course, what weight is to be attached to that evidence will be considered at the end of the hearing.
I mention two further matters.
First, it was open to the respondents to challenge the evidence of good reputation, having been led by the applicant. I have considered the authorities referred to during argument. Generally, those decisions relate to challenges to the pleadings in mitigation, prior to trial. I note that in Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496, Wigney J referred (at [379]) to evidence led which reflected bad reputation (where it had not been pleaded). There is no suggestion in the judgment that the evidence was inadmissible. Rather, the evidence was given little weight. In any event, in practical terms, the issue comes down to notice to the applicant to provide him an opportunity to lead evidence of good reputation. That is not an issue here. This is not a case where the applicant has been deprived of an opportunity to lead such evidence. The objection taken is a technical one.
Finally, the cross-examination of Dr Ellis at transcript page 3051 involved a series of questions concerning Dr Papadimitriou, including whether he disliked Dr Al Muderis. The questions went so far as to call Dr Papadimitriou a “hater”. During the hearing of objections to the admissibility of those questions, it was submitted by the applicant that they were relevant to the credit of other witnesses. The submission went further, and it was suggested, in effect, that Dr Papadimitriou had been publicly denigrating the applicant. No basis for the assertion was identified at the time. Taken most favourably to the applicant, it can only be said to relate to the evidence of reputation, the subject of the challenge. That is, the applicant cross-examined the evidence in. If the basis on which those questions were put is as articulated, the evidence the subject of the challenge has been made even more relevant. That cross-examination highlights the relevance of the evidence at transcript page 2285.
The impugned evidence at transcript pages 2282 and 2285 is admissible.
I have not addressed the last sentence in the answer at transcript page 2282. The witness was cut-off halfway through his sentence as his answer had gone beyond evidence of the applicant’s reputation. I will hear in due course any submissions the parties wish to make as to that sentence.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham. Associate:
Dated: 7 May 2024
SCHEDULE OF PARTIES
NSD 917 of 2022 Respondents
Fourth Respondent:
CHARLOTTE GRIEVE
Fifth Respondent:
TOM STEINFORT
Sixth Respondent:
NATALIE CLANCY
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