Suing surgeon failed but is not a monster, lawyer says

Bianca De Marchi/AAP PHOTOS

Star surgeon Munjed Al Muderis is not a monster but there is a public interest in reporting when his operations fail as they have for dozens of people, a court has heard.

The medical device inventor has sued Nine over reports alleging negligence and high-pressure sales tactics in relation to his prosthetic limb implants.

The reports featured in The Sydney Morning Herald, The Age and on 60 Minutes in September 2022.

Nine has defended the claims as true or otherwise protected as journalism in the public interest.

The company's barrister, Matthew Collins KC, acknowledged many former patients considered Dr Al Muderis a hero, but others - including 30 expected to give evidence - had a different opinion.

"Many will say that he ruined their lives," Dr Collins told the Federal Court on Tuesday.

"Their stories are strikingly similar."

He said he expected those stories to demonstrate the substantial truth to allegations of medical risks being downplayed or not mentioned at all, inaccurate records of consultations, aggressive surgeries without exploring or explaining alternatives, and pressurised sales tactics.

"We do not contend that Dr Al Muderis is some sort of monster, he obviously is not," he said.

"But there was a public interest in reporting what happens when surgery of this kind fails."

The surgeon's barrister Sue Chrysanthou SC is chasing aggravated damages, citing precedent that there is no public interest in reporting misinformation.

One of the journalists might need her senior lawyer father to come to court.

"You will see ... evidence of a malignant, dishonest and malicious campaign by at least one journalist ... and followed through by others who worked with her," Ms Chrysanthou said when the trial began on Monday.

Ms Chrysanthou took almost a day and a half to take the court through cherry-picked evidence, making "sweeping conclusory statements" and "repeatedly branding as liars people the respondents may call," Dr Collins said.

Charlotte Grieve, an investigative journalist among those sued by the orthopedic surgeon, wrote in October 2022 "the investigation into surgeon Munjed Al Muderis came from a conversation with my father".

It formed part of the series "exploring the stories one of Australia's most celebrated surgeons doesn't want you to hear," which Dr Al Muderis wants the court to have taken offline.

Dr Al Muderis consulted the father and drew a graph on an X-ray envelope, showing two diverging outcomes dependent on if he had surgery.

Dr Collins said the graph was clearly a sales tactic, which did not make it into Ms Chrysanthou's address despite reference to it in the surgeon's affidavit.

"She should not have opened on this matter," he said.

Donald Grieve KC's evidence on their meeting may differ from what Dr Al Muderis recalled in his affidavit, Dr Collins said.

"We may well need to call Mr Grieve (as a witness)," he said.

Ms Chrysanthou earlier on Tuesday disputed the alleged impact of Dr Al Muderis's operations.

She argued one patient's life was already "ruined" before he had surgery, using medical, housing and business records predating the procedure, which the journalists should have been able to procure too.

"I'm no investigative journalist, but that took 15 minutes last Friday," Ms Chrysanthou said.

She said the outlets should narrow the "futile endeavour" of their defence "to the patients where they really have a proper basis".

Witnesses are expected to begin giving evidence on Monday with a timetable to be set on Friday.