This looks very much like the end of the gold rush at the defamatorium.

Munjed Al Muderis follows Bruce Lehrmann and Ben Roberts-Smith into the dustbin of failed and pharaonicly expensive defamation claims.

The former Western Australian senator, Linda Reynolds, while being awarded damages and interest of $341,000 for her claim against her raped staffer Brittany Higgins, is unlikely to retrieve anywhere near enough to cover her costs of between $1.5 and $2 million.

It was the same story for former Treasurer Sloppy Joe Hockey’s defamation 2015 action against The Sydney Morning Herald over the Treasurer for sale story. Sloppy Joe was unsuccessful in more than three-quarters of his case. He asked for damages of $1 million, was awarded $200,000 and only received 15 percent of his costs – giving a fresh gloss to the word “victory”.

In the UK, actor Neil Clarke suffered a catastrophic loss last month in the High Court. The Guardian successfully defended his defamation claim arising from the accounts of more than 20 women alleging he had engaged in sexual misconduct.

It was a six week trial involving untold numbers of lawyers and eye-watering costs. Truth and public interest prevailed.

The Australian actor Geoffrey Rush was awarded damages totalling more than $2.8 million in his action against The Daily Smellograph, and nothing much has been heard of him, or his career, since.

Even when a plaintiff gets a defamation “win” the outcome can be well short of being victorious.

Apart from being underwater with the costs, the over egged articles from Linda Reynolds’ PR team at the Murdoch press ignore unhelpful aspects of Justice Paul Tottle’s findings.

Our sister organ, 500 Words or thereabouts, says that while Reynolds was on the stump claiming the verdict restored her “reputation”, the judge indicated he awarded damages, not for reputation, but for injured feelings.

Western Australia has not adopted the uniform stage one defamation reforms from July 2021, which require defamation plaintiffs in the other states to meet a serious harm threshhold for the publication sued on.

HH Paul Tottle said in relation to both of Higgins’ defamatory social media posts that it was unlikely they caused any actual damage to the plaintiff’s reputation.

As the people at 500Words put it: If those findings had been made in any other state of Australia [and the ACT] “Linda would have been sent home in a second-hand smock”. See: Perils of the Defamatorium

Last November, the Gazette of Law & Journalism reported that between 2020 and 2024 there had been a 24 percent reduction in defamation actions resolved after being commenced in court.

To make matters even more uncomfortable for claimants, the awards of damages and default judgments in 2024 was half that of 2020.

Nor are defamation litigants finding success on appeal, with only one or two plaintiff appeals being upheld in recent years.

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Bruce Lehrmann’s appeal against Justice Lee’s fundings was eccentric, to say the least. However it is puzzling that having escaped the lions den of the criminal trial he would he go back for his hat in a Federal Court defamation claim against Network Ten and TV personality Lisa Wilkinson.

The only logical explanation was that he took a wild punt that Brittany Higgins would not give evidence and therefore Ten and Wilkinson would be unable to prove their defence to the rape imputations.

After the criminal trial Brittany was never going to get back into the witness box. ACT DPP Shane Drumgold cancelled Lehrmann’s retrial because of her delicate mental health.

She had been in and out of hospital after collapsing, and her condition deteriorated after the Reynolds’ litigation cranked into gear. Lehrmann’s legal team were confident they would have a clear run to success without the respondents being able to prove a truth defence – presumably that is why they staked the case and are now out of pocket.

After Lehrmann gave his disastrous evidence to Justice Lee, Higgins put up her hand and said she was prepared to appear for the respondents.

While Lee rejected significant elements of her evidence, the parts he did accept were sufficient for him to make a finding at [620] that “Mr Lehrmann raped Ms Higgins”.

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In the wake of Justice Wendy Abraham’s judgment and orders in the Al Muderis case, The Sydney Morning Herald and The Age published editorials last month attacking “grasping defamation lawyers” who pose a threat to public interest journalism.

“Some are no better than tow-truck drivers sitting in wait on the edge of the freeway so they can be first at the crash scene … One such litigator has made it their hallmark to fire off semi-literate correspondence to editors and reporters in the dead of night …”

The Al Muderis case against Nine (TV and newspapers) ran over nine months with 15 weeks of evidence. It concerned accusations about the orthopaedic surgeon’s negligence, unethical conduct, improper sales tactics, misleading patients, providing negligent post-operative care, and prioritising fame and money over the well being of his patients.

Investigative journalist Charlotte Grieve was cross-examined by Celebrity Sue Chrysanthou for six days and the plaintiff by Matt Collins for more than 10 days.

After Marsden and Roberts-Smith it was the third longest defamation trial in recent memory.

Contextual truth and, for the first time in the history of the Wide Brown Land, the public interest defence prevailed. Clearly, this has been an upsetting moment for plaintiffs who traditionally have had a clear run on the basis that journalists are never reasonable.

Maybe the next round of defamation law reform could implement a cap on damages at $15,000, costs at $10,000, and get rid of laboured pleadings about imputations.

Following the judgment, journalist Charlotte Grieve has been flushing Al Muderis out of other burrows – including his association with Medibank and Macquarie University Hospital; an alleged honorary role at the University of Sydney; and his claims to be an ambassador for the Red Cross and Amnesty International.

Needless to say, he wants to appeal. Meanwhile Charlotte Grieve’s account of the case, Duty To Warn, will be published by Hachette in January 2026.

The glacial machinery of defamation trials, the mind-numbing technicality, and the hideous expense, have all conspired to quietly strangle the goose that laid the golden eggs.

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Not to worry. As the defamation mill quietly runs out of grist, privacy comes to the rescue in the form of the new statutory tort dealing with serious invasions of privacy.

Reptiles of the press have rejoiced at what appears to be a broad exemption for “journalistic material”. However, the same people who made a feast acting for defamation claimants are finding that there is elbow room within the media exemption.

The legislation defines “journalist” and so too “journalistic material”: having the character of news, current affairs or a documentary. The exemption largely applies to the legacy media, not to keyboard warriors on social media or citizen journalists or even to journalists’ sources.

There is no guidance as to what constitutes “news”, which traditionally has included information that is private.

Is gossip news? Is Andrew Bolt, the Blabbering Wort, a journalist or a propagandist? Can litigants recover for defamation and privacy over the same material? Does serious harm apply to actions in privacy?

Much of this will be made up in the process of litigation.

Importantly, there is a basket full of available remedies: damages, injunctions, account of profits, orders for apologies, corrections, declarations – the woiks.

Barrister Tom Blackburn SC told a recent seminar hosted by Johnson Winter Slattery that the journalism exemption presented a big challenge for the media, particularly at the tabloid end of the trade.

Truth is no defence in privacy actions and stories that are interesting, yet not worth publishers spending money to protect, will die when handed an interlocutory injunction.

In the UK, the privacy law has meant the end of “kiss and tell” stories and restricted the media’s ability to report police investigations prior to a person being charged.

This approach could have an impact on investigations into people like Alan Jones – affecting reporting before charges are laid. Conceivably, we might miss out on the love life of business executive Richard White, the CEO of Wise Tech Global.

A photo of Mike Cannon-Brookes snogging his girlfriend is also likely to be spiked under this regime, and certainly there are some things that rightly should be subject to sanction – such as the Courier Mail’s ugly trampling on the privacy of a family whose school age daughter committed suicide.

See: Media Watch

Lawyers for Victorian MP Sam Groth have commenced a breach of privacy action believing The Hun is not protected under the media exemption for the paper’s “hit job” on whether the relationship with his wife commenced when she was under his care or supervision as a tennis coach.

While editors are mulling the changes and wondering how hard to restrain themselves, there does appear to be wriggle room, as this recent exposé by the Daily Mail in the UK reveals – the deputy PM vaping privately on water in a rubber canoe.