Al Muderis v Duncan

Dr Al Muderis

1. Dr Al Muderis was born and raised in Baghdad. He attended Baghdad Jesuit College and graduated from Baghdad University with a Bachelors Degree in Medicine and Surgery in 1997.
2. He undertook his medical residency and in October 1999 was forced to flee Saddam Hussein's regime. He had been ordered to remove surgically the ears of soldiers who had escaped the army. This he refused to do as he considered it inconsistent with the Hippocratic Oath. His supervisor at the time, who came to the same decision, was taken outside and shot. He died from the wound. The shooting and death occurred in the presence of other staff.
3. Dr Al Muderis escaped the hospital by being smuggled in a bus to Jordan, flying to Kuala Lumpur in Malaysia and then on to Jakarta in Indonesia. He travelled by bus to the south of Java and then undertook a 36 hour trip on a flimsy, wooden boat to Christmas Island with 165 other refugees. In modern parlance, Dr Al Muderis was a "boat person". I do not say that as a criticism of Dr Al Muderis.
4. The Australian Federal Police removed him from the boat and he was flown by chartered plane to Western Australia where he was detained in the Curtin Immigration Detention Centre for 10 months. Despite the obvious difficulties and conditions suffered during the time he was smuggled through Iraq into Jordan until he reached Christmas Island, he described the time at the Curtin Immigration Detention Centre as "hell on earth".
5. At the Detention Centre, Dr Al Muderis was known only by his identification number. That is relevant, because the number is used in the harassment of Dr Al Muderis and in the publications about which complaint has been made.
6. On 26 August 2000, Dr Al Muderis was granted refugee status, moved to Sydney and has lived there since that time. In 2009, Dr Al Muderis married and is currently living with his wife and two children. For reasons which will become obvious in these reasons for judgment, Dr Al Muderis published an autobiography "Walking Free", published by Allen & Unwin in 2014.
7. As a result of the requirements for specialist accreditation in Australia, Dr Al Muderis required study in Australia. Nevertheless, Dr Al Muderis is accredited in Australia. In 2008 he obtained Fellowship of the Royal Australian College of Surgeons (FRACS); Fellow of the Australian Orthopaedic Association (FAOrthA); and has since completed three post-specialisation fellowships: Lower Limb Arthroplasty, Hip and Knee Arthroplasty and Trauma. Dr Al Muderis received a graduate certificate in Sports Medicine (UNSW).
8. Dr Al Muderis began private practice in 2010 and has appointments at the University of Notre Dame Australia (Sydney campus) as an Adjunct Clinical Associate Professor in the School of Medicine; Macquarie University and the Australian School of Advanced Medicine (NSW campus) as Clinical Lecturer; and the Sydney Adventist Hospital, Norwest Private hospital and Macquarie University Hospital as an orthopaedic Visiting Medical Officer. Dr Al Muderis also serves as a Squadron Leader Specialist Reserve in the Royal Australian Air Force and has done so since 2010.
9. Dr Al Muderis is an ambassador for the Red Cross Australia, Amnesty International, the UN Refugee Agency (UNHCR) and International Settlement Services and is a patron of the NSW Amputee Association.
10. Previously, Dr Al Muderis has held consultant positions as a visiting medical officer in orthopaedics at Hornsby Hospital, Ryde Hospital, Baulkham Hills Private Hospital and Liverpool Hospital.
11. Dr Al Muderis has been nominated for Australian of the year in both 2015 and 2016 and in 2016 was also nominated in the "Humanitarian" category of the Beirut International Awards.
12. It is patently clear from the foregoing that Dr Al Muderis' reputation is of the highest order. However, it is unnecessary to rely on inference and evidence was adduced, as one would expect, on that issue. Some of that evidence is important to recite.

Reputation Witnesses

1. Mr Patrick Weaver, a Public Relations Consultant, who owns his own company, attested to Dr Al Muderis' reputation. Mr Weaver assisted Dr Al Muderis in the writing of his autobiography.
2. Mr Weaver has two artificial hips, the operation on neither of which was performed by Dr Al Muderis. Since he has come to know Dr Al Muderis, he has used Dr Al Muderis on issues relating to his artificial hips.
3. Mr Weaver is aware of Dr Al Muderis' charity work and aware that his reputation is "exceptionally high". He went to him to advise on issues with his hips because "he is the best orthopaedic surgeon" (Transcript, p 18).
4. Since he has come to know Dr Al Muderis, Mr Weaver realises that the doctor completely opposes bullying and is a peaceful, gentle man whose main motivation in life is to assist others.
5. Mr Timothy O'Connor also gave evidence as to the reputation of Dr Al Muderis. Mr O'Connor is with the Refugee Council. Dr Al Muderis was a "most generous donor" and Mr O'Connor, on account of his generosity, requested Dr Al Muderis to be an Ambassador for Refugees and the Refugee Council (Transcript, p 3.
6. Mr O'Connor referred to Dr Al Muderis as a man of the highest reputation, who recently travelled to Iraq to treat 90 patients in three days as a charitable exercise. Dr Al Muderis is held in the highest esteem by all persons with whom Mr O'Connor has come in contact.
7. The last, and in some senses most relevant, reputational witness is Dr Rosenblatt. Dr Rosenblatt travelled from San Francisco to Australia to study Dr Al Muderis' technique in osseointegration, the reasons for which I will refer to hereunder.
8. Dr Rosenblatt has been an orthopaedic surgeon for approximately 17 years. He was approached by a patient who complained that technology had not been utilised sufficiently to assist persons who had lost limbs. The patient had researched the issue on the Internet and on Facebook.
9. As one would expect of a professional, particularly one of such experience, Dr Rosenblatt was cynical as to the accuracy of the Internet and Facebook summaries, some of which referred to Dr Al Muderis. Finally, the patient convinced Dr Rosenblatt to attend on a person who had travelled to Australia for the osseointegration operation performed by Dr Al Muderis. As Dr Rosenblatt described it, the patient was in Las Vegas, which added to Dr Rosenblatt's scepticism.
10. Nevertheless, after some persuasion, Dr Rosenblatt travelled to Las Vegas, examined the patient and watched the patient move over a period of time (a weekend). Dr Rosenblatt subsequently made contact with Dr Al Muderis, came to Australia to study the technique and has been here ever since.
11. I have referred to Dr Rosenblatt's experience as more relevant for this reason. Given the internationally leading nature of the osseointegration and its benefits to patients, other orthopaedic surgeons will largely, or at least on occasion, learn of the new technique through the Internet, through Facebook and other forms of social media.
12. As a consequence, and given the understandable scepticism that such a specialist would have, the existence of the impugned websites and the defamatory vilification of the plaintiff on the websites have a far greater effect on the reputation of Dr Al Muderis than might otherwise be the case. Dr Rosenblatt's experience, assuming his discovery of the technique is likely to be the same as other specialists' discovery, makes the defamation even more problematic and the damage to Dr Al Muderis even greater.
13. Otherwise Dr Rosenblatt described Dr Al Muderis in glowing terms. Dr Rosenblatt said that the plaintiff works "24/7" or, in real terms, at least 100 hour weeks every week (Transcript, p 11).
14. Dr Rosenblatt has not read the impugned publications but he has heard of them. People have told him.
15. Patients have mentioned the publications to Dr Al Muderis, during appointments, and he has seen Dr Al Muderis' shoulders drop, his head and face drop and a look of despair and/or desperation come over him. Dr Rosenblatt demonstrated in the witness box his observations of the reaction of Dr Al Muderis.
16. He has also heard comments in the lunchroom at Macquarie University Hospital and, generally, people speaking of the websites.
17. In his evidence, Dr Al Muderis said that the website and the harassment were causing him to consider leaving Australia. He had taken out Apprehended Violence Orders, but he cannot avoid the two fake websites that use his name or parts of it to create mischief and to defame him. Counsel took Dr Al Muderis through some examples.
18. Further, the issues are taking significant time and resources away from his charity work and his capacity to work in his chosen profession.
19. Dr Al Muderis, in his evidence, was generally understated. His demeanour was impressive and he showed himself to be an honest, caring and reliable witness and person. At one stage he asked rhetorically whether he was going to be the next "Victor Chang", not referring to Victor Chang's medical prowess, but to the fact that he was murdered.
20. It is an understatement to say that Dr Al Muderis is the poster boy to answer some of the criticism that emanates in relation to refugee issues. He is in some sense "the perfect plaintiff" in a defamation proceeding. He is involved in charity, works for the Australian Defence Forces, gives of his time and money for persons who are less fortunate and has put Australia at the leading edge of medical technology.

Osseointegration

1. Dr Al Muderis developed an osseointegratable femoral and tibial stem. The technique involves the implanting of titanium pins into an amputee's femoral or tibial bone to which is then attached a prosthetic leg. The technique is an alternative to socket prosthesis.
2. As most people, even lay people, are aware, bone adheres to titanium. The result of the technique is that, instead of an amputee requiring a most uncomfortable prosthesis that is attached by belts to a leg, the prosthetic leg attaches directly to the titanium implant and requires no straps. It works similarly to a tooth implant, although the prosthetic leg is able to be unattached with minimum effort. This is pioneering work and Dr Al Muderis travels the world lecturing and educating other orthopaedic surgeons in the technique.
3. The first recipients of these implants were Australian war veterans and then survivors of the Christchurch earthquake in New Zealand in 2011. Other classes of persons that have benefited from these implants were soldiers and others from the United Kingdom, the Netherlands, Germany, the United States of America, Canada, Colombia, Mexico, South Africa, Poland and Lebanon, often persons who are serving in joint or UN taskforces. There have been approximately 500 recipients of these implants worldwide and Dr Al Muderis has undertaken approximately 300 of those operations.
4. In 2012, the British military established a program to send their amputee veterans to Australia to have them fitted with the osseointegration implants by the team which Dr Al Muderis leads. To date, Dr Al Muderis has fitted 13 British soldiers with the implant. The program was reviewed by HRH Prince Harry during a visit to Australia in April 2014 and a documentary entitled "The Soldier and the Surgeon" was recently broadcast on SBS.
5. Dr Al Muderis, as earlier stated, is an ambassador of the Red Cross to third world countries and travels there annually to perform osseointegration operations on amputees in situations where the amputee has usually been the victim of a road mine or bomb explosion. He donates, in that work, not only his time but the implants, which he provides, and, on the evidence before the Court, he pays his own airfare and accommodation as well as the airfares and accommodation for the team that travels with him.
6. There can be little doubt that the plaintiff is a person of extremely high standing and an extraordinarily good reputation, which is deserved. The hurt he has felt in relation to the imputations against him has been understandably great. Further, the damage to his reputation, while not yet manifested in the opinions expressed in Court, are potentially even greater.

Publications

1. It is unnecessary for the Court to detail the content of the publications. The Court has already determined that the imputations arise from the publications, as outlined above, during the course of the judgment on liability, with which, independently, the Court, as presently constituted, concurs.
2. Nevertheless, it is, even when confined to the issue of damages, necessary to recite some of the history of the publications. It is also appropriate to note the context and nature of the publications.
3. The first discovered publication consisted of an internet website at the address "www.almuderis.co", which was discovered in or about December 2014. The website address is similar to the business website address of the plaintiff. As can be seen from the name of the website address, it uses the whole of the plaintiff's surname in the address. Also in the content of the website is a photo of the plaintiff, which seems to have been copied and pasted from the plaintiff's business website.
4. It is fairly obvious that the first impugned publication is intended to look like an authentic website for the plaintiff. Its content attacks the plaintiff in his professional capacity and also his personal character, and imputes the characteristics, identical to those to which the Court has already referred in these reasons.
5. The evidence before the Court is that the website was registered by a company, the contact name for which was a Mr Duncan. The first name of which was different to that of the first defendant, Mr Rodney Duncan.
6. Contact was made with the Internet Service Provider, Instra Corporation Pty Ltd, which refused to remove the website or deregister its name in the absence of a Court Order. This website was removed after the second defendant's conviction in October 2015 for the offences of intimidation and the use of a carriage to harass/menace/offend in relation to Dr Al Muderis.
7. Leaving aside the details, the second defendant was ultimately sentenced, on appeal, by the District Court to a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999, the conditions attached to which included not committing any further offences nor contacting Dr Al Muderis in any way whatsoever. This first website is not the subject of these defamation proceedings.
8. The first impugned publication came to the attention of the plaintiff on or about 31 August 2016 and has existed since, at least, 30 November 2015. This date is known as a result of computer searches. This website was similar to the initial website and the photo was identical. The website address is "almuderis.co".
9. The website includes a link to a nine and a half minute video of the second defendant speaking to a camera and making allegations against Dr Al Muderis.
10. Amongst other things, the website suggests that Dr Al Muderis should be charged criminally, was unethical, arrogant, had a reckless disregard for human life and otherwise gave rise to all of the imputations to which these reasons have referred.
11. It should be added that this website arose after, and remained after, the conviction and Apprehended Personal Violence Order was in place. The registrant and administrative contact of the website was the first defendant. The directors of the corporate body were the first and second defendants.
12. The second impugned publication first came to the attention of the plaintiff on or about 8 September 2016. It is a website in or to the same effect as the first impugned publication except for minor alterations relating to whether Dr Al Muderis should have been charged criminally.
13. The third impugned publication first came to the notice of the plaintiff in or about mid February 2015. It came to the attention of the plaintiff in the following circumstances.
14. The plaintiff was aware from approximately late December 2014 of the second defendant's Facebook page. The Facebook page contained similar material, including the video narrative to which these reasons have already referred, as the first and second impugned publications. Further, it contained images of monsters and a "Wanted" poster referring to Dr Al Muderis and suggesting that he had butchered and mutilated patients. As at 21 September 2016, the Facebook page showed 341 members.
15. The fourth impugned publication is a YouTube publication of the video to which these reasons have already referred. The YouTube publication goes further and also refers to Dr Al Muderis as being unaccountable and refers to other "victims", each of whom is a fantasy. The same imputations arise from the fourth impugned publication.
16. Once more, it suggests that the incompetence of Dr Al Muderis caused the second defendant to be without a penis and that he had not taken responsibility for the devastating consequences. The YouTube video showed 535 views as at 22 September 2016.
17. The fifth impugned publication is the publication on Daily Motion and Pinterest. It first came to the attention of the plaintiff on or about 17 April 2015.
18. The Daily Motion Publication is at the address of dailymotion.com to which there is a link at the Pinterest website, the address of which Pinterest.com. The plaintiff had this website brought to his attention by others in or around September 2016.
19. The fifth impugned publication contains the same video monologue as earlier described. It is published on the Daily Motion website under the heading "Dr Al Muderis the Butcher", which also is the heading, but capitalised and bold, on the Pinterest page linking the video.
20. In the same manner as the YouTube site, there are paragraphs dealing with unaccountability, incompetence and the other matters to which the Court has referred in relation to the fourth impugned publication. This site indicated that it had attracted 484 views as at November 2016.
21. Since 14 September 2016, when the orders of this Court issued enjoining the defendants, and each of them, from publishing material, further websites have been created containing the same material, including the earlier mentioned video. Some of those websites are: 1. www.almaderis.org.au; 2. www.almurderis.me; 3. www.dralmuderis.com
22. The website address, referred to in (a) above, was removed after complaint by the plaintiff or on his behalf for reasons unassociated with the use of the name. The address in (b) above was removed, again after complaint by the plaintiff, or on his behalf, because of the similarity to the plaintiff's legitimate website.
23. The website address in (c) above was also the subject of complaint on behalf of the plaintiff. This website was not removed and the provider has made it clear that it would not be removed in the absence of an order of a court.
24. Further, since the interlocutory injunctions were issued and entered, the second defendant has been prolific in the posting of material on Facebook, YouTube, Google Ads, Vimeo, Video Bash, Internet Archive and Rutube, each of which includes content from which would arise the imputations to which these reasons have earlier referred and in many of the cases include the video to which earlier reference has been made or a link thereto. Transcripts of these publications have been provided and admitted on the basis that it is relevant to the need for injunctive relief on a permanent basis.
25. The evidence before the Court shows that the use of a format such as Google Ads has the effect that a Google search of the plaintiff's name, either with the title "Dr" or without, would have the effect of showing up the defendant's website as the first or second entry on the results of the Google search.
26. It is clear, on the evidence before the Court, that in the absence of orders preventing it, the defendants will continue to publish or post material that contains the imputations pleaded in these proceedings.
27. It may be that they will continue to post such material, despite such orders. That certainly seems to have been the attitude thus far. However, the Court, in the absence of a formal proceeding for contempt, does not find, at this stage, that there has been a contempt.
28. It is more than obvious that the personal hurt and effect on the plaintiff has been more than significant. It is also clear that the continued utilisation of his name or variations of it by the defendants is continuing to cause the plaintiff damage, both in terms of hurt feelings and in terms of damage to reputation, actual and potential.
29. It is necessary to note that the Court, in these proceedings, is not dealing with a cause of action in intimidation or harassment. These are defamation proceedings and any orders that the Court issues in these proceedings must be confined to appropriate orders arising from the defamation. Further, there is no claim for special damage.

Principles on the Issue of Injunctive Relief for Defamation and Damages

1. The award of damages for defamation in New South Wales is governed by the provisions of Part 4, Division 3 of the Defamation Act 2005 which requires that damages bear a rational relationship to the harm suffered (s 34 of the Defamation Act); limits the amount to be awarded for non-economic loss to an amount, currently $381,000 (s 35(1) of the Defamation Act) (the recent declaration of an amount of $389,500 does not apply until 1 July 2017); allows aggravated damages over and above the aforementioned (s 35(2) of the Defamation Act); requires the Court to disregard malice or the state of mind of the defendants except to the extent that it affects the harm sustained by the plaintiff (s 36 of the Defamation Act); proscribes exemplary or punitive damages (s 37 of the Defamation Act); and allows certain matters in mitigation, none of which are particularly relevant (s 38 of the Defamation Act).
2. In relation to the relevance of the matters in mitigation, the Court notes that there has been no apology; there has been no correction; there has not already been the recovery of damages for the defamatory imputations published or arising from the publications; no other proceedings for damages for defamation have been bought by the plaintiff; nor has the plaintiff received or reached agreement to receive compensation for the defamation in relation to any other publication with the same meaning or effect. Further, relevant to the issue of costs, the Court notes that each defendant has failed to accept proposals relating to the withdrawal of the publications, which proposals were made before the commencement of these proceedings and which proposal was, at the time it was made, reasonable.
3. Fundamentally, damages in defamation actions are assessed in the same way as damages in any action, subject always to the limitations imposed or considerations required by the statute. As has been reiterated on a number of occasions, there are generally three purposes informing the assessment of appropriate damages in defamation. These are consolation for the personal distress and hurt caused to the plaintiff by the publications; reparation for the harm done to the plaintiff's personal and (if relevant) business reputation; and vindication of the plaintiff's reputation.
4. Consolation for personal distress and hurt and reparation for the harm are often, if not always, considered together and, when properly assessed, will vindicate the reputation of the person defamed. Vindication, however, considers the attitude of others and requires that an award of damage must be at least the minimum necessary to disclose to the public the vindication of the plaintiff's reputation.
5. Included in the matters to which a court pays regard in dealing with personal distress, reparation for harm to reputation and vindication, are the gravity of the defamatory material, the social standing of the plaintiff (and to some extent the defendant) and the availability of alternative remedies. Each is relevant in assessing the quantum of damages necessary to vindicate the plaintiff: for each of these principles see Carson v John Fairfax & Sons Ltd & Slee (1993) 178 CLR 44; [1993] HCA 31 at CLR 60-61.
6. The prohibition on exemplary or punitive damages does not prohibit the awarding of aggravated damages. The two species of damage are different. Exemplary damages are damages over and above those necessary to compensate. Aggravated damages are compensatory in nature in that they are awarded to compensate for increased suffering due to the manner in which the defendant has behaved in committing the wrong or thereafter: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40 at CLR 149; Carson, supra, particularly the judgment of McHugh J therein.
7. Fundamentally, aggravated damages are compensatory for the damage suffered by a plaintiff in circumstances where the defendants have committed the tort, or after committing the tort, have acted with some significant or contumelious disregard of the plaintiff's rights, in an insulting or high-handed way or with malice (Crampton v Nugawela (1996) 41 NSWLR 176; [1996] NSWSC 651) and that conduct has increased the plaintiff's suffering. Aggravated damages are compensatory, as already noted, but are classified in that way because the greater the insult or the more reprehensible the defendant's conduct, the greater the suffering and the greater the hurt to the plaintiff's feelings: Uren v John Fairfax & Sons Pty Ltd, supra, at CLR 151; Henry v Thompson [1989] 2 Qd R 412; Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Torts Reps 81-246.
8. However, it is necessary to understand that if the compensatory damages awarded are sufficient to compensate the plaintiff for the actual loss suffered (however that damage may have occurred), it will be unnecessary and inappropriate to award aggravated damages: Uren v John Fairfax & Sons Pty Ltd, supra. The foregoing general principles are applied to the award of damage in this matter. Again, the Court reiterates that these proceedings are proceedings in defamation. The proceedings do not deal with intimidation or harassment or any of the economic torts or torts in trespass. Direct threats made to the plaintiff are not defamatory, because, whatever their content, they are published only to the plaintiff.
9. The plaintiff also seeks permanent injunctive relief. It is necessary to deal with that aspect. But the threats to the plaintiff cannot, in these proceedings, be the basis for such relief.
10. The orders that are sought by the plaintiff include both mandatory and prohibitory injunctions. It is generally necessary to distinguish between the two kinds of injunctions, because different rules apply. In each case, however, it is necessary to show that damages are an inadequate remedy. Further, in each case the remedy is discretionary, although in some cases of negative or prohibitory injunctions, they run "as of course", in the sense that any judicial exercise of discretion would require the injunction to be granted. That is never the case in mandatory injunction situations.
11. Before embarking upon a discussion of the principles to be applied in the grant of a prohibitory or mandatory injunction in defamation cases, it is necessary to note that it is generally important to differentiate between a mandatory injunction, on the one hand, and, on the other hand, other requirements to undertake conduct, for example, specific performance of a contractual obligation or mandamus in administrative law. It is unnecessary to more than note the differentiation and make clear that nothing in this discussion is intended to deal with specific performance of obligations or orders for the performance of a statutory or regulatory duty, such as orders in the nature of mandamus.
12. Moreover, it is necessary to reiterate that we are here concerned not with the enforcement of contractual rights, but the prevention of a continuing tort, in circumstances where damages are to be awarded for the past effect of the tort. Generally, a court will not grant an injunction unless it is for the purpose of enforcing a recognised legal or equitable right, the infringement of which would be unlawful: Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434; [1918] HCA 56 at CLR 464. Last, an injunction will not be issued to avoid inconvenient or trivial infringement of right. Nor will an injunction issue where damage is an effective and adequate remedy.
13. In the case of defamation, general public interest issues arise that deal with a restraint on freedom of speech. Otherwise, the Court's evaluation must nevertheless balance the rights of the party claiming an injunction and the effect and prejudice on a restraint of such kind on the conduct of the person enjoined.
14. In Church of Scientology of California Incorporated & Another v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344, Hunt J dealt with an application for interlocutory injunctive relief to prevent defamatory material. His Honour made it clear that the discretion to grant an interlocutory injunction in a defamation proceeding should be exercised with great caution and only in the most clear cases. This would include a situation where a finding that material was not defamatory would be unreasonable; that there is no real ground for success on any one of the defences; and the damages are more likely than not to be greater than nominal damages only. Further, his Honour made it clear, after discussion of the relevant principles and authorities, that there is an independent and overriding principle that injunctive relief will not issue to restrain a discussion in the press (or other publications) of matters of public interest or concern: see also Edelsten v John Fairfax & Sons Ltd [1978] 1 NSWLR 685. In many senses the principles established by the High Court relating to Constitutional guarantees as to freedom of speech in governmental matters supports that independent and overriding principle.
15. The foregoing approach was cited with approval and followed in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46, in which the High Court (Gleeson CJ, Gummow, Hayne and Crennan JJ) reiterated the principle to which Hunt J referred and overturned the judgment of the Full Court of the Supreme Court of Tasmania because it failed to take proper account of the significance of the value of free speech in considering whether to restrain the publication and the possibilities arising from trial, including that justification was an issue at trial yet to be determined and there was a real possibility that nominal damages would be awarded.
16. The judgment of the High Court in Australian Broadcasting Corporation v O'Neill, supra, is not binding on the issues before the Court in these proceedings, because the statements of principle relate to the issue of interlocutory injunctions, not final injunctions. Nevertheless, the comments as to the significance of the value of free speech in restraining publication are an important element that should not be underestimated in determining whether to grant restraining orders. In determining whether to grant final relief, ultimately the issue is one of balance between the nature of the defamation, the damage to the plaintiff and the value of free speech associated with the capacity of defendants to continue to publish.

Conclusion

1. The Court takes into account the grapevine effect, but the extent of the publication and its "republication" by grapevine is unknown. The allegations focus on the plaintiff's capacity in his chosen profession. This is more significant, in circumstances where his reputation is extremely high or at the highest possible level. Further, his good reputation, particularly in a leading and novel process, the acceptance of which depends upon the reputation of the plaintiff and the process, is essential and these imputations are extraordinarily damaging.
2. The evidence before the Court, as already stated, is that the level of hurt feelings and the damage to the reputation of the plaintiff is extremely high, and, probably, at the highest level.
3. In Polias v Ryall (No 2) [2015] NSWSC 1, the Court, as presently constituted, dealt with a series of publications and assessed damage for each of the publications separately. The situation here is slightly different. Nevertheless, it is appropriate to deal with the first impugned publication separately and the remainder in one assessment.
4. The separation of the first impugned publication is necessary because it is the first impugned publication that was the result of the conduct of both the first and second defendants, while the remaining publications, most of which repeat that which is in the first impugned publication, are the result of the conduct, so far as the evidence proves, only of the second defendant. In my view, the first impugned publication is that which has caused the most damage and, largely, the remaining publications are republications of the same or similar imputations.
5. The conduct of the defendants and their attitude to reasonable approaches for the removal of the documentation, including the absence of an apology despite the continuing efforts of the plaintiff, warrants aggravated damages. The conduct of the defendants has damaged the plaintiff in a manner that aggravated damages is appropriate. The Court may award aggravated damages and the result of such an award may mean that the damages may surpass the cap otherwise imposed and to which reference has been made earlier.
6. As earlier stated, the current limit on the award of damages (not including aggravated damages) is $381,000. For the first impugned publication (and bearing in mind that damages will also be awarded for the remainder of the publications), the Court will order damages, including aggravated damages, of $320,000.
7. For the remaining publications, the Court will award damages of $160,000. It should be made clear that the total non-economic damage, apart from the aggravated damages that is included in the foregoing amounts, for all of the publications together, would not exceed $381,000. The Court makes the first and second defendants jointly and severally liable for the damages for the first impugned publication.
8. There have been principles established in the past, before the advent of electronic media, that proscribed injunctive relief against the provision of the wrong address for a person: see, by analogy, White v Mellin [1895] AC 154; Day v Brownrigg (1878) 10 Ch. D 294.
9. Nevertheless, in circumstances where there is tortious conduct, which on the evidence before the Court, will continue and the continuation of that tortious conduct renders damages insufficient, a permanent injunction will issue, determining, as I do, that the ordinary discretionary considerations are satisfied. To refuse to enjoin a defendant from repeated or continued tortious conduct, in circumstances where there is no public interest in the continuation of that conduct, is to affect adversely the administration of justice and render the courts powerless.
10. Injunctive relief will issue. It will be permanent injunctive relief. Of course, a person can always apply to the Court for the variation of orders on bases that may arise. The form of the injunctive relief will be suggested in these reasons, but will not become final until the parties have had the opportunity to be heard on them. The proposed injunctive relief will include mandatory injunctions.
11. The injunctive relief proposed, on a preliminary basis, is in or to the following effect: 1. Within seven days of the date of this order, that each of the first and second defendants take all steps to remove from the Internet and/or any social media platform any website, article, advertisement, or document referring or identifying the plaintiff herein; 2. The defendants and each of them be restrained from repeating or continuing to publish a website, article, advertisement or document referring to or identifying the plaintiff herein; 3. The defendants and each of them be restrained from distributing, publishing in hard copy or on the Internet or on any social media any depiction that identifies the plaintiff by name, by picture or otherwise; 4. The defendants and each of them be restrained from publishing on the Internet, social media, or in hard copy any imputation of the plaintiff in or to the following effect: 1. The plaintiff's gross negligence as a surgeon has destroyed people's lives; 2. The plaintiff as a surgeon deserved to be found guilty of negligence by the NSW Medical Board; 3. The plaintiff deserved to be criminally charged; 4. The plaintiff mutilated Gerard's (a reference to the second defendant) reproductive nerves; 5. The plaintiff falsely promised to cure Gerard of his pain if he paid $8000 for a one-hour procedure; 6. The plaintiff's negligence in his operative and post-operative treatment of Gerard led to a loss of sensation in his penis, thereby destroying his sex life and causing great depression; 7. The plaintiff is an unethical surgeon motivated only by arrogance and pride; 8. The plaintiff is a disgraceful surgeon with a reckless disregard for human life; 9. The plaintiff as a surgeon engages in unethical human experimentation for the purposes of obtaining financial reward and prestige; 10. The plaintiff in his practice as a surgeon has inflicted extreme destruction on multiple patients; 11. The plaintiff's conduct as a surgeon is so disgraceful that it embarrasses all decent and committed healthcare workers; 12. The plaintiff as a surgeon is a butcher and a bully; 13. The plaintiff creates false documents in the course of his practice as a surgeon in order to cover up his mistakes; 14. The plaintiff cruelly labels his patients as having psychological problems in an effort to cover up his own mistakes; 15. The plaintiff acted negligently by undertaking two unnecessary operations on a patient's right hip; 16. The plaintiff's gross negligence during an operation on a knee replacement patient on 26 June 2013 ruined that patient's life; 17. The plaintiff's performance as a surgeon is so poor that his colleagues regarded him as an idiot; 18. The plaintiff as a surgeon butchered a patient undergoing a knee replacement in September 2015; and 19. The plaintiff acted with gross negligence by failing to diagnose a post-operative infection following a knee replacement, leading to the patient suffering a permanently ruined knee. 1. Within seven days of the date of this order the defendants and each of them be restrained from applying for or utilising any website or social media address that contains the name of the plaintiff herein or any address that is similar to the name of the plaintiff herein or any address that would identify the plaintiff herein; 2. The defendants and each of them be restrained, and are hereby restrained, from inciting, encouraging or otherwise suggesting to any person that such person engage in conduct from which the first or second defendant is, by these orders, restrained.
12. The Court makes the following orders: 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.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2017