Solicitors:
Newhouse & Arnold Lawyers (plaintiff)
File Number(s): 2016/276179
[2]
Judgment
HER HONOUR: Dr Munjed Al Muderis is an orthopaedic surgeon practising in Sydney. Dr Al Muderis has this afternoon commenced proceedings on an urgent basis to restrain the continued publication on the internet of material he alleges is defamatory of him. The application has been brought before me as the defamation list judge in accordance with clause 8 of the defamation list practice note SC CL 4. The plaintiff moves for urgent interlocutory relief on an ex parte basis. Although the proceedings come against the background of a lengthy history of dealings between the plaintiff and one of the defendants, the event which triggered the present application came to the plaintiff's attention on 31 August 2016.
On that date, the plaintiff's solicitor wrote to the registrant of the relevant website, the defendant Mr Rodney Duncan, complaining of the material and seeking a response by 5 pm on 5 September 2016. That letter was sent by post and also by email to the appropriate addresses. No response was received.
At 12.26 pm today, the solicitor sent an email to the first and second defendants noting the absence of any response to the letter of 31 August 2016; enclosing a copy of the summons and unsworn supporting affidavit and seeking consent to the orders sought in the summons, failing which it was indicated that the plaintiff would approach the Court after 2.00 pm today. There was no response to that email. I acknowledge the relatively short period of notice of the ex parte application. However, the defendants have been on notice of the plaintiff's complaints since 31 August 2016 and have not responded.
In the circumstances, I was satisfied that it was appropriate to proceed to hear the application for interim relief ex parte, noting that the fact that the defendants had not been heard should inform the exercise of the Court's discretion to grant the relief sought.
As already noted there is a lengthy history of dealings between Dr Al Muderis and one of the defendants, Mr Gerardo Mazzella. Mr Mazzella was a patient of Dr Al Muderis who it seems suffered an adverse outcome following surgery. The surgery, a hip arthroscopy, was performed on 16 March 2010. On 6 October 2011, Mr Mazzella commenced proceedings against Dr Al Muderis for medical negligence. However, after a series of procedural difficulties, those proceedings were ultimately dismissed by Garling J for want of due despatch: see Mazzella v Al Muderis [2014] NSWSC 1087.
Mr Mazzella subsequently lodged a complaint with the Health Care Complaints Commission. That complaint was dismissed after the Commission had called on Dr Al Muderis to respond. The Commission's letter to Dr Al Muderis informing him of the outcome of the complaint appears at annexure D on page 48 of Mr Birbas' affidavit in support of the present application. The Commission concluded that, having considered all the information provided, there was insufficient evidence to demonstrate that Dr Al Muderis' skill, judgment or care in providing treatment to Mr Mazzella was significantly below the standard reasonably expected for a medical practitioner of an equivalent level of training or experience.
Mr Mazzella thereafter made many attempts, in some instances successful, to contact Dr Al Muderis. There is before the Court a transcript of one such conversation which is included in Mr Birbas' affidavit. The transcript of the conversation reveals an ongoing unhappiness on Mr Mazzella's part with the outcome of the surgery and, above all, a desire to have an explanation as to what went wrong.
That material appears at pages 56 to 65 of the affidavit. A number of considerations arise from the transcript of the conversation. On the one hand, it reveals a clear concern on Mr Mazzella's part to know what happened in the surgery, which suggests that in any defamation proceedings based on an imputation that the plaintiff was negligent, the defendant may well wish to plead the defence of truth.
Conversely, however, the material plainly reveals an ongoing fixation with those events and an unwillingness on Mr Mazzella's part to let them go. The transcript includes specific threats at some points, never to leave the plaintiff alone; at other points in the conversation Mr Mazzella suggests a preparedness to leave the plaintiff alone if he receives the explanation he seeks. Certainly, so far as the threat to continue publication is concerned, the transcript provides compelling evidence in support of the plaintiff's contentions.
Finally, by way of recitation of the history of dealings between the plaintiff and Mr Mazzella, the plaintiff ultimately made a complaint concerning Mr Mazzella's harassment of him to police. On 27 October 2015, Mr Mazzella pleaded guilty to offences of intimidation and using a carriage service to harass, menace or offend. He was, according to a letter sent by police to the plaintiff, convicted and sentenced to four months imprisonment suspended on condition that he enter into a bond to be of good behaviour and comply with certain conditions including undertaking "some rehabilitative measures" for matters including drug and alcohol rehabilitation for a period of twelve months from the date of the conviction.
On the same date, an apprehended violence order was made on a final basis enforceable for a period of two years from 27 October 2015. The AVO includes the usual orders 1(a), (b) and (c) prohibiting Mr Mazzella from assaulting, molesting, harassing or threatening the doctor, engaging in any other conduct that intimidates him, or stalking him. In addition to those standard orders, the AVO includes the following order:
"The defendant must not operate, create, cause to be created, maintain any website designed or reasonably perceived to contradict Order 1(a), (b) or (c).
Prior to the making of those orders, there had been established by Mr Mazzella a website under the domain name www.almuderis.co which included material plainly defamatory of Dr Al Muderis. Following the making of the AVO that website was taken down. There is also, evidently posted by Mr Mazzella, Youtube material and a Facebook page which also contain plainly defamatory material. Some of that material was provided to the court in Exhibit A on the present application.
For a period, Dr Al Muderis did not respond to those matters with any further legal action. However, the matter described by Mr Richardson, who appears for Dr Al Muderis, as the "bridge too far" for the doctor was the recent appearance of a new website under the same domain name as before, now registered in the name of Mr Rodney Duncan. Mr Mazzella is also known as Gerard Duncan, pointing to the inference that the two men may be members of the same family.
The plaintiff's inquiries as to the registration of the new website led him to the third defendant, Instra Corporation Pty Ltd, which is the host registration authority. The position taken by Instra is that it will consent to the jurisdiction of the court and any interim order made by the court requiring it to suspend the domain name (which would have the effect of bringing the website down).
By way of proper disclosure as an ex parte applicant, and in response to questions by me, Mr Richardson stated that Dr Al Muderis has had against him, in almost 17 years of practice, a total of four complaints to the Health Care Complaints Commission (including, presumably, that made by Mr Mazzella) and three other civil claims apart from the claim brought by Mr Mazzella. Mr Richardson confirms that each of the complaints to the HCCC relates to one of the civil claims. In other words, there is a total, it would appear, of four complainants against Dr Al Muderis.
The principles relating to an application for interlocutory relief to restrain a defamatory publication are well known. They were set out in careful detail in a document provided by Mr Richardson to which I have regard and which will remain with the Court papers. Since it is now after 4.00 pm, I will recite those principles only in short form. Of particular importance is the decision of the High Court in Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57, where the Court recites the elements the plaintiff must establish in order to obtain an interlocutory injunction.
The first is whether there is a serious question to be tried as to the plaintiff's entitlement to relief. A draft pleading annexed to Mr Birbas' affidavit reveals that the plaintiff seeks to prosecute three causes of action against the first and second defendants. In each case, the cause of action is based on the inference, the strength of which is overwhelming, that Mr Gerard Mazzella, the second defendant, is behind the establishment of the new website undertaken with the assistance of a man who is probably his brother or otherwise related to him, Mr Rodney Duncan.
The only relief sought as against the third defendant, Instra Corporation, arises in the circumstance I have explained of its being the host registration authority of the website.
There is plainly at least a limited cause of action for defamation against the first and second defendants. The material on the new website is highly defamatory of Dr Al Muderis. The transcript of the telephone conversation to which I have referred reveals a likelihood, or at least a prospect, that Mr Mazzella may wish to defend some imputations as being true, but I accept, as submitted by Mr Richardson, that as to at least some imputations, the prospect of a successful truth defence may be dismissed.
For the cause of action in defamation, there is of course a long line of authority which emphasises the caution the court must exercise in granting an interlocutory injunction because of the competing interest of free speech. The relevant principles are adequately stated in the decision in Australian Broadcasting Commission v O'Neill. Other authorities were referred to by Mr Richardson but I do not think it is necessary to recite those.
Acknowledging the caution to be exercised, two matters are relevant in the present case. The first is the unlikelihood of any truth defence to at least some of the imputations, which are very serious. The second relates to the second element required to be established by the plaintiff, to which I now turn.
The plaintiff must establish that he is likely to suffer injury for which damages will not be an adequate remedy. I am satisfied that element is made out so far as the defamation case is concerned, because there is a real suggestion that Mr Mazzella at least is impecunious and because of the inevitable damage likely to be caused by a website of the kind complained of. Of particular pertinence in that context is the fact that the web address is almost identical to the plaintiff's professional website address, which is www.almuderis.com.au.
Turning to the other causes of action, the statement of claim also pleads a cause of action for injurious falsehood. Where causes of action for defamation and alternatively injurious falsehood are pleaded in respect of the same publication, competing principles must be considered.
On the one hand, as noted by Hunt J in Swimsure (Laboratories) Pty Limited v McDonald [1979] 2 NSWLR 796 at 800B, the principles protecting the concept of free speech that apply in the case of an injunction sought for defamation will not be permitted to be defeated merely by the formulation of an alternative claim in injurious falsehood. However, as his Honour held at 801C, it is recognised that where an action is framed as one for slander of goods, an injunction limited to the disparagement of the plaintiff's goods may lie within those principles.
The elements of injurious falsehood are set out in Mr Richardson's submissions drawn from Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 from the judgment of Gummow J at 404; [52] as follows:
(1) a false statement of or concerning the plaintiff's goods or business;
(2) publication of that statement by the defendant to a third person;
(3) malice on the part of the defendant; and
(4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement.
As with the cause of action in defamation, there is at least a serious question to be tried that some of the representations made by the website are likely to be false simply by reason of their extremity, and they are extremely serious. I say that acknowledging that, as to others, plainly there may be a real contest, Mr Mazzella independently wishing at one point to have litigated the issues he was prevented from litigating in the proceeding that was dismissed for want of due despatch.
I do not think it is necessary on the present application to reach a concluded view as to the third cause of action under the Trade Practices Act. The issues raised under that cause of action are more complex and not readily amenable to determination on an urgent ex parte basis. In particular, there may be a real contest as to whether the representations are made in trade or commerce but it is not necessary to address that issue today.
I am satisfied that there is a serious question to be tried as to the plaintiff's entitlement to relief under the cause of action in defamation and injurious falsehood and that the plaintiff is likely to suffer injury if an injunction is not granted today for which damages may not be an adequate remedy.
Turning to the balance of convenience, the considerations are complex. As submitted by Mr Richardson, in one sense the balance of convenience is all one way. The defendants' loss is not having the entitlement to publish the extravagant allegations made on the website for a short period between now and the final hearing. That is the view that was taken by White J in Caplin v Go Daddy NSW [2005] NSWSC 636 at [37]. One answer to that proposition is that, for that short period, the defendant is denied his freedom of speech. That is not a consideration in the cause of action in injurious falsehood and the issue of impecuniosity arises in respect of both causes of action.
Another consideration in the balance of convenience is that there would appear to be a real prospect that the publication of the new website constitutes a breach of the AVO, namely the clause that I have set out. A breach of the AVO would in turn be a breach of the bond entered into by Mr Mazzella, which gave rise to the suspension of the four month term of imprisonment imposed for the offences of intimidation and using a carriage service to harass.
In those circumstances, it would seem to be a real possibility that the defendants will not seek in this Court to defend the publication of the website other than on the basis of denying publication, in which event the interest in freedom of speech largely evaporates, if they are not the persons who seek to exercise that freedom. That is something which remains to be seen on an inter partes basis.
In all the circumstances, I am persuaded that it is appropriate to grant the relief or at least some of the relief sought in the summons on an interim basis with the intention of bringing the proceedings back inter partes before me in the defamation list on Friday, so that the period of restraint at least in the first instance will be short.
The orders I propose on an interim basis are:
1. An order that the first, second and third defendants suspend the domain name www.almuderis.co.
2. Orders 4 and 5 in the summons until further order and stand the proceedings over to the defamation list.
3. I direct the plaintiff to effect service of the orders made this afternoon by email to each of the addresses identified in evidence before me by 7 pm today. I make the return date of 10 am on Friday.
4. I direct the plaintiff also to serve the material in addition by placing it in the post.
[3]
Amendments
30 September 2016 - Name of counsel assisting inserted onto coversheet
02 October 2016 - Edit to wording of decision on coversheet
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Decision last updated: 02 October 2016