The Supreme Court awarded AUD320,000 in damages jointly and severally against Gerardo Mazzella and his brother Rodney Duncan, with an additional order for Mazella to pay AUD160,000 in damages to Dr Al Muderis.
Gerardo Mazzella had complained about numbness in his penis and scrotum after Dr Al Muderis performed a hip operation on him in 2010 – but, tests revealed no damage to the relevant nerves.
The ‘perfect plaintiff’ for defamatory cases
Mazella and Duncan set up a website – styled similarly to Dr Al Muderis' official business site – and Facebook page grossly defaming him and accusing him of medical negligence. Other defamatory materials included a YouTube video calling 'Dr Al Muderis the Butcher', and 'wanted' posters on Pinterest depicting Dr Al Muderis with pictures of 'grotesque monsters' and captions calling him 'Penis Lovechild’.
Justice Stephen Rothman said in his judgment on the evidence provided, including medical tests that showed no injury, did not show any ‘evidence of any negligence or wrongdoing' by Dr Al Muderis. In fact, Justice Rothman found Dr Al Muderis to be, in a way, '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," Justice Rothman said.
"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."
Neither brother chose to appear in court to defend the claims against them
Justice Rothman heard that the operation had gone “as planned” but Mazzella had travelled to Thailand, contrary to advice "that he not fly so soon after surgery".
“When he returned, the usual follow-up appointments were held, during which the first complaint was made of a loss of sensation in Mazzella’s penis and scrotal area,” he wrote. It was unclear whether Mazzella’s sexual function was “completely lost” or had “merely diminished”.
Nevertheless, Mazzella's complaints became "more and more vitriolic", turning into personal threats that ranged from face-to-face encounters to verbal threats over the phone, by him or his brother. These included demands for money, suggestions that Mazzella knew where Dr Al Muderis' wife worked and children went to school, and “threats to 'cut off [the plaintiff's] penis' and to 'kill' him", according to Justice Rothman.
The threats escalated after both a medical negligence suit and complaint to the Health Care Complaints Commission were dismissed. Dr Al Muderis then sued the brothers for defamation late last year over the website and social media posts.
Neither defendant chose to appear in court to defend the charges. Hence in December, Justice Lucy McCallum entered default judgment for Dr Al Muderis. Justice Rothman, who assessed damages, considered that Mazzella and his brother had "at every stage, declined the opportunity" to defend their claims.
Thus, he found that none of Mazzella's claims withstood scrutiny and that the brothers had engaged in "a most vicious and vituperative series of publications" that "vilified" Dr Al Muderis. He awarded damages of AUD480,000 plus interest in favour of Dr Al Muderis.
According to Justice Rothman, it is also very likely that injunctions would be granted requiring the brothers to remove the defamatory materials and refrain from re-publishing it. MIMS
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