Federal Court of Australia

Colagrande v Kim [2022] FCA 409

ORDERS

THE COURT ORDERS THAT:

1.    The respondents pay the applicant damages for non-economic loss, including aggravated damages, assessed in the amount of $420,000.

2.    The respondents pay the applicant special damages assessed in the amount of $31,511.29.

3.    The respondents and each of them be permanently restrained from publishing or re-publishing the False Review as defined in paragraph 4 of the statement of claim or any matter to the same or a similar effect as the False Review.

4.    The respondents and each of them be permanently restrained from publishing or re-publishing the following imputations about the applicant or any imputations to the same or a similar effect:

(a)    the applicant sexually assaulted his patient; and/or

(b)    the applicant had so conducted himself in sexually assaulting his patient that he should not be practising medicine.

5.    The respondents pay the applicant’s costs as agreed or taxed.

6.    The respondents pay pre-judgment interest on the award of damages to be calculated in accordance with s 51A of the Federal Court of Australia Act 1976 (Cth) and in accordance with paragraph 2 of the Federal Court of Australia Interest on Judgments Practice Note (GPT-INT) for the period from the start of the limitation period until the date of these orders.

7.    The parties have liberty to apply to vary order 5 within 7 days of these orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:    

The claims

1    The applicant, Dr Cesidio Colagrande (also known as Dr Ces), seeks damages for defamation and an order restraining the respondents from publishing the defamatory matter or any matter or imputations to the same effect as the defamatory matter, as well as associated orders for costs and interest.

2    For the reasons which follow Dr Colagrande should be awarded general damages of $420,000, special damages of $31,511.29, costs and interest, as well as a permanent injunction against each of the respondents as sought.

The primary facts

3    The primary facts fall within a narrow compass.

4    Dr Colagrande is an Australian trained doctor. He completed a training Fellowship with the Cambridge Private Hospital in Cambridge, United Kingdom in 1999, becoming an Honorary Fellow in Aesthetic Plastic and Reconstructive Surgery at Addenbrooke’s Public Hospital in Cambridge, United Kingdom in 2002, and gained a Fellowship in Cosmetic Surgery from the European Academy of Cosmetic Surgery in 2005. He established a clinic at Mermaid Beach, Gold Coast, Queensland, in 2006 where he mainly performed cosmetic procedures, health assessments and well-being programs. His clinic attracted patients from around Australia and overseas.

5    In February 2017 Dr Colagrande was convicted of indecent assault of a patient, a charge to which he had pleaded not guilty. On 5 June 2018 the Queensland Court of Appeal quashed that conviction. The prosecution entered a nolle prosequi (a formal abandonment of the charge) on 7 June 2018.

6    Dr Colagrande has an account with the RateMDs website. RateMDs is self-described as the “original and largest Doctor rating site since 2004 with over 40 million visits every year”. Members of the public can post entries relating to doctors on the RateMDs website.

7    In early 2019 Dr Colagrande checked his profile on the RateMDs website. He saw that on 12 December 2018 an unidentified person had posted a review on the website as follows:

After what he did to me, I can’t believe he’s still practicing.

Just read the article. https://www.news.com.au/national/queensland/courts-law/gold-coast-plastic-surgeon-ces-colagrande-found-guilty-of-sex-assault-of-stripper/news-story/e6615788f087f0883c6620afe8165bfa

8    The review also gave Dr Colagrande 1 out of 5 for each of staff, punctuality, helpfulness, and knowledge.

9    Dr Colagrande assumed the former patient who had falsely accused him of sexual assault had made the post. Before reading the false review he was in control of his emotions and trying to get his life back on track, but was worried about the “negative articles still published about him that misrepresented [him] as a sexual predator”. After reading the false review he was “an emotional wreck”. The false review took him back to “relive the horror” of the criminal trial and his conviction, and he “was fearful that the patient was not finished in destroying [his] life and reputation”. He had visions of the verdict as he stood in the dock and other nightmares and flashbacks. He could not sleep and took time off work to avoid making mistakes. On 2 June 2019 he was diagnosed with post-traumatic stress disorder.

10    Dr Colagrande contacted RateMDs, which refused to remove the post. He retained lawyers in California to unearth the IP details of the person who had posted the review, as he understood that the only way to have the false review removed was to prove that the former patient had made the post and that the post was false given the outcome of the appeal quashing his conviction. RateMDs ultimately released the IP address pursuant to a subpoena. Dr Colagrande then retained lawyers in Australia to identify the account holder(s) of the relevant IP address. This necessitated proceedings against Telstra as the service provider. This Court ordered Telstra to provide the account holder(s) information on 4 November 2020. Telstra provided the information as ordered and two weeks later his Australian lawyers informed Dr Colagrande that the account holders were the respondents, Mr Min Sik Kim and Mrs Anna Min. Dr Colagrande’s lawyers also told him that a Google search of “Min Sik Kim” appeared to be linked to a “Dr Mitchell Kim”.

11    Dr Colagrande felt “sick to the bone” on discovering that the person who posted the false review was another doctor who he understood practised in the same field as he did. He described himself as becoming paranoid about other doctors, did not know who to trust, and felt isolated from other doctors, defenceless, vulnerable and in despair. His anxiety increased and he feared others would read the false review and, like he did, assume that it was from the former patient who was trying to exact vengeance. He instructed his Australian lawyers to send a concerns notice to the respondents which then led to this proceeding, which was commenced on 21 June 2021.

12    The respondents filed a defence in which they denied publishing the false review. Neither respondent gave evidence in the proceeding.

Further evidence and factual findings

Who posted the false review?

13    Dr Dennis Desmond is a cyber security expert. His unchallenged evidence is that the false review was posted on 12 December 2018 at 09:18 AEST using a Samsung mobile device over a Telstra account for which the respondents are the account holders.

14    Answers to interrogatories tendered in evidence establish that at all material times the first respondent was a doctor practising cosmetic surgery. The first respondent performed liposuction, Brazilian butt lifts, breast augmentation using fat transfer, and administered injectables. The first respondent was also aware that Dr Colgrande performed breast augmentations. Further, the first respondent’s main office was located on the Gold Coast and he performed liposuction, Brazilian butt lifts, breast augmentation using fat transfer, and administered injectables at that location. He was also aware that Dr Colagrande had an office on the Gold Coast and performed breast augmentations at that location.

15    Answers to interrogatories also establish that the respondents each had full authority in respect of the Telstra account Dr Desmond identified was used to post the false review. The internet service associated with this account was connected to a residential address (which was the home address of the respondents) and was password protected, the only persons having access to the account being the respondents. The first respondent also admitted that on 18 December 2018 [sic] the only mobile phone he owned was a Samsung Galaxy Note, which was password protected; he alone knew the password.

16    It is also apparent that the first respondent has an account with the RateMDs website which identifies him as Dr Mitchell Kim, a “Plastic/Cosmetic Surgeon. Physician”. The profile page for the first respondent on the RateMDs website (or at least a version of that profile page in evidence) also contains a reference to “Dr Ces Colagrande’s” profile on that website under the heading “You may also like”.

17    It was submitted for the respondents that it would not be accepted that the first respondent had any motive to damage Dr Colagrande’s reputation as the evidence did not support the proposition that they are direct commercial competitors in performing the same types of procedures. I disagree. They are both general practitioners describing themselves as cosmetic surgeons who practise on the Gold Coast. The fact that the first respondent admitted only that he was aware that they both performed breast augmentations does not support the proposition that they were not competitors (direct or otherwise). I infer from the evidence that the first respondent perceived Dr Colagrande to be a competitor because at all material times:

(1)    they were both general practitioners describing themselves as cosmetic surgeons who practice on the Gold Coast; and

(2)    the first respondent knew that Dr Colagrande performed breast augmentations on the Gold Coast, which surgery the first respondent also performed on the Gold Coast;

18    This conclusion is reinforced by the fact that the first respondent has elected not to give evidence. It must be inferred that the first respondent knew that Dr Colagrande alleged in his statement of claim (paragraph 18(e) and (f)) that the first respondent’s motive, “as a competitor of the applicant” was to damage Dr Colagrande’s reputation and “the respondents acted with malice knowing the conviction against the Applicant had been quashed”. In these circumstances, given that it would have been reasonable to expect that the first respondent would be called to give evidence in the proceeding and there is no explanation for the first respondent not having done so, I can and do more readily infer from the available evidence that the first respondent perceived Dr Colagrande to be his commercial competitor. I also can and do infer that the first respondent had a motive to post the false review in order to damage Dr Colagrande’s reputation as a perceived commercial competitor of the first respondent.

19    It was submitted for the respondents that it was not suggested that the second respondent had any motive to publish something defamatory about Dr Colagrande and the Court would not find that she had made the post. I disagree. The statement of claim alleges that the respondents or one or more of them published the false review in the post on the RateMDs website (paragraph 4). Accordingly, the pleading includes an allegation of joint or sole tortfeasance. The statement of claim also alleges that Dr Colagrande’s hurt and harm was aggravated by the conduct of the respondents including that the respondents acted with malice knowing the conviction against Dr Colagrande had been quashed (paragraph 18(f)).

20    In these circumstances, and given the second respondent has also admitted she has full authority to use the internet account used to make the post, it also would have been reasonable to expect that the second respondent would be called to give evidence in the proceeding; there is no explanation for the second respondent not having done so. In these circumstances I can and do infer that the second respondent facilitated and participated in the publication of the false review sufficient to establish the second respondent as a joint tortfeasor with the first respondent.

21    Accordingly, I consider it proved that the first and second respondent acted in concert to upload the post containing the false review to the RateMDs website on 12 December 2018. I infer that they did so because the first respondent wished to harm the reputation of Dr Colagrande as a perceived commercial competitor of the first respondent and the second respondent wished to assist the first respondent to achieve that malicious purpose.

Who read the false review?

22    Leaving aside the evidence of Michael Markwick, I do not accept the attempts on behalf of the respondents to undermine the cogency of the evidence of the witnesses who read the false review and its effect on them.

23    Mr Marwick said in his affidavit that he planned to have surgery performed by Dr Colagrande in May to July 2020 later in that year. He did some more research online using the search term in Google of “Dr Ces” and at the top of the results there was the RateMDs website. He saw the false review. He followed the link forming part of the false review and read the attached article. He then re-thought his decision and became anxious. He contacted Dr Colagrande’s practice in October 2020 and cancelled his surgeries. On 3 December 2020 Dr Colagrande called Mr Markwick and asked if he was ready to have the surgery. Mr Markwick said he had become anxious and uncomfortable after he read the RateMDs website about the sexual assault. Dr Colagrande said that the conviction had been overturned. Mr Markwick will not have surgery with Dr Colagrande because the false review made him uncomfortable about the doctor. In cross-examination, however, Mr Markwick agreed that rather than clicking on the RateMDs website, he had clicked on other news articles about Dr Colagrande’s conviction and he did not read the RateMDs website until after his conversation with Dr Colagrande in December 2020.

24    I should record that I do not consider Mr Markwick to have been untruthful in giving his affidavit. I formed the impression from his brief oral evidence that Mr Markwick had an agreeable disposition. I give his evidence no weight given the inconsistency between his affidavit and his oral evidence.

25    The other witnesses were less open to contrary suggestion. Examples include the following:

26    Rachel Hardy gave this evidence:

(1)    “I often googled Dr Ces because my partner had seen him a couple of times and I was looking at having a procedure done and – so I often sat there when I had spare time and would google his name just to have a look at the gallery and see – yes, I was just tossing up what I was wanting done”;

(2)    “I just remember going to another page, RateMDs, which I actually have seen about other doctors, as well”;

(3)    “Can I suggest to you that it is unlikely that you would have been interested in reading other patients’ reviews of Dr Colagrande, because you had already - - -?---No. That’s incorrect.

- - - had your own experience with him, and you gave evidence that - - -?---No. I like to read other people’s reviews.”; and

(4)    “As you sit here today, you cannot be sure whether you read a news article on Google about Dr Colagrande’s sexual assault conviction or a review on RateMDs. Do you agree with that or disagree?---No. I clicked on the RateMDs.

When you did read his RateMDs page, whenever that was, there was more than one negative review about him on the page, wasn’t there?---No, actually. I only saw the one.”

27    Brett Russo gave this evidence:

(1)    “I want to suggest to you that the reason you decided that Alyssa should not have surgery with Dr Colagrande in 2020 was because you were unable to find any evidence online that his conviction had been overturned; do you agree with that?---No, no. I don’t agree with that, actually. No, no.”;

(2)    “I want to suggest to you that you did not read a review about Dr Colagrande on RateMDs until after he had told you, during your phone conversation in March 2021, that he was taking the matter to court?---Why – why would you suggest that? How would you know? Mate, you don’t…. I wouldn’t have signed an affidavit if it wasn’t true.”;

(3)    “The driving factor [for deciding his wife should not have surgery with Dr Colagrande] was that I jumped on there and saw that review, that – that MD review, and that was scathing. That’s – that’s the reason. You can – you can assume that it was the other reason, but it wasn’t.”;

(4)    “Mate, if someone is going to leave a – leave a bad review – it doesn’t get any worse than that [the false review] when – when you’re a doctor.”; and

(5)    “And you cannot be sure, as you sit here now, whether you read the RateMDs review before or after you spoke to Dr Colagrande in March 2021?---No, that – that bit – no, I do remember that bit… And you cannot be sure, as you sit here now, whether you read the RateMDs review before or after you spoke to Dr Colagrande in March 2021?---No, that – that bit – no, I do remember that bit.”

28    Cassandra Heath gave this evidence:

(1)    “What I want to suggest to you is that you didn’t see the review at that time [November/December 2020]. You did not – you only saw the review after Dr Colagrande told you about this case. Do you agree with that or disagree?---I disagree with that… I saw it when I was researching doctors”;

(2)    “you clicked on one of the news articles about his sexual assault conviction, rather than the RateMDs page?---No, that’s not correct, because I’ve used the RateMDs page before to research doctors… So I knew about that website.”;

(3)    “What other patients thought of Dr Colagrande would have been of no interest to you because you had your own experiences with Dr Colagrande to go by, didn’t you?---That’s not correct, because I was looking at other doctors as well.”;

(4)    “But I would suggest to you that you focused on those news articles about Dr Colagrande, rather than this review page. Do you agree with that or disagree?---Disagree, because the – when I read, ‘After what he did to me, I can’t believe he’s still practising,’ that made me believe that it was the person who was saying that they were sexually assaulted.”; and

(5)    “And I want to suggest to you that you can’t be sure, as you sit here now, whether you read the RateMDs review before or after you spoke to Dr Colagrande. Do you agree with that or disagree?---I read that before I spoke to Dr Colagrande.”

29    Perry Dollar gave this evidence:

(1)    “Yes, there were news articles. There was also the RateMD website that popped up in the Google search”;

(2)    “I want to suggest to you that what you actually clicked on were the news articles about the sexual assault conviction and not the RateMDs website. Do you agree with that or disagree?---No, I don’t agree with that… And, yes, with all due respect, sir, the news, to me, is not something that I take with a – much of a grain of salt, but a RateMD website that actually rates the quality of a doctor is a lot more valuable to me than just some big news story. So, no, I don’t agree with you.”;

(3)    “I want to suggest to you that you cannot now be sure, as you sit here, whether you read the RateMDs website before or after you spoke to Dr Colagrande about doing an affidavit in the proceedings?---That’s not correct.”;

30    James Shaw gave this evidence:

(1)    “From the answers that you’ve been giving, it seems that you have great difficulty in recalling exactly what it is that you did when you searched Dr Colagrande’s name in January 2021; is that right?---I remember something very clearly.”; and

(2)    “I remember very, very clearly looking for his contact details. Next minute, I’ve – I’m not even sure how I got there – I’m on a patient feedback, and – and all the comments were really good except for one. One was quite damning.”

31    Jonathan Eaves gave this evidence:

(1)    “The second one [website on Google after the advertisements] was RateMD.”;

(2)    “I want to suggest to you that as you sit here now, you’ve got no clear memory of which websites you read while you were sitting in the airport lounge?---No, I think I’ve been very clear about the websites I read….”;

(3)    “I’m suggesting to you that this is 18 months ago that you did this. You have no reason to have any particular recollection of which websites you read on that occasion. Do you agree with that or disagree?---No, that’s incorrect. No, that’s – I – I – I completely disagree. I think when you read something where someone has put a comment such as that [the false review] about the doctor you go and see, you do refer to it – you – you remember it very clearly. Now, my apologies if we want to get into semantics about websites and the order in which I read them, but I do very clearly and honestly know I read that comment on that website, and it affected my opinion of Dr Ces - - - which is the reason I asked him to – to remove my results from his service so I could find an alternative doctor.”;

(4)    “you do not clearly recall reading a post on the RateMDs website in August 2020; agree or disagree?---Disagree; as I mentioned, I scrolled through the different sites and, in order to find Dr Ces’ – Dr Colagrande’s details – had to go through multiple different websites, of which this was one of them… I didn’t hunt this down. It was the second result.”;

(5)    “You read multiple websites, and I’m suggesting to you that you have no particular reason now to remember which ones those were. Do you agree with that or disagree?---I disagree.”; and

(6)    “The one that you have set out at paragraph 11 of your affidavit was not the only negative review, was it?---Was the only negative review on the first page. I didn’t scroll to the second one. Was the only negative review. They were all three or four stars. It was the only one star and it stood out, and that’s why I read it.”.

32    Glenn Sheahan gave this evidence:

(1)    “I want to suggest to you that it wasn’t until you had that conversation with Dr Colagrande that you looked at his RateMDs page. Do you agree with that or disagree?---I disagree.”;

(2)    “I suggest to you that you don’t have a clear recollection of reading a RateMDs post in October 2020?---I did read that post.

You’ve read it at one point in time. I’m asking you whether you have a clear recollection of reading it - - -?---Yes… I do remember reading the post in October, but I don’t have a clear recollection of the second article.”;

(3)    “And as you sit here today, you can’t be sure whether you read the RateMDs review which contained the hyperlink before or after you spoke to Dr Colagrande about his legal proceedings?---I can be sure about that. I read that before I spoke to Dr Colagrande.

I suggest to you that you might be mistaken about that?---No, I’m not.”

33    It was submitted for the respondents that it “strains credulity to suggest that a person could notice news articles about the applicant being convicted of sexual assault in the Google search results – articles with thumbnails such as “Gold Coast cosmetic surgeon Ces Colagrande guilty of sex…” – and yet pass over those articles, and click instead on a website such as RateMDs, to read reviews written by unknown strangers”, particularly given that:

(1)    “many of these witnesses had no obvious reason to care what strangers thought of the applicant, because they had had their own positive experiences with him, and had been happily seeing him as their doctor for years; and

(2)    “[i]t is especially difficult to accept that the witnesses could be so sure in their evidence about which specific webpages they read at which specific times, after this length of time. It is a not a thing which any of them would had any apparent reason to remember”.

34    I disagree.

35    I saw and heard these witnesses give evidence. Their answers were clear, cogent and credible about the essential matters: (a) they did a Google search about Dr Colagrande for their own reasons (either because they were considering having surgery with him or were considering offering him work), (b) they read the false review as a result of finding and looking at the RateMDs website in the Google search results, and (c) they reacted to the false review either by deciding not to have surgery with Dr Colagrande or by deciding not to offer him employment as they had contemplated before seeing the false review. I accept their evidence.

36    It does not strain credulity to accept that people contemplating having surgery with a doctor or contemplating employing a doctor might be more interested in what other patients say about the doctor than news articles. It was clear from the evidence that some of these witnesses routinely search the internet for patient reviews of their contemplated doctor, including on the RateMDs website, even if they have previously been happy with the services of that doctor. This is not surprising, let alone incredible. Like many professionals, it can be inferred that doctors are judged on their ongoing (that is, current) performance. While the witnesses were not sure about immaterial details given the passage of time, what they were sure about was doing the Google search for their own reasons unprompted by anyone, finding the false review on the RateMDs website, and reading and reacting to it. Given the importance of contemplated surgery or employment, it is not at all difficult to accept that the witnesses gave reliable evidence about these matters.

37    This evidence is also relevant to the submission for the respondents that it cannot be inferred that:

(1)    a user of the RateMDs website specifically comprehended the matter complained of – a single, four-line “review” – amongst 96 other reviews on that page; and

(2)    somebody did so within a specific timeframe, namely the 12 months preceding the commencement of proceedings, in circumstances where it is uncontroversial that posts on RateMDs are displayed chronologically, and therefore the matter complained of would become less and less likely to be seen by a reader of the page as time passed.

38    When they searched for Dr Colagrande using Google, these witnesses found both the RateMDs website and the false review, with apparently relative ease. So did Dr Colagrande himself. There is also evidence which supports an inference that the RateMDs website appeared on the first page of search results of Dr Colagrande using Google. The evidence also supports an inference that the RateMDs website is easy to use. Examples of the website page show that the pages are well organised and easy to understand. I infer it would not be a difficult or frustrating experience for a person interested in seeing other patient reviews of Dr Colagrande to work their way through all of the comments, with their attention being naturally drawn to any review with only one star. This is because the star system is prominent and I infer a one star rating would stand out. Further, the evidence establishes that within the 12 months before the proceeding was commenced, Mr Eaves, Mr Dollar, Mr Russo, Mr Sheahan, Ms Heath, Mr Shaw, and Ms Hardy all read the false review on the RateMDs website.

39    Other evidence also supports an inference that a large number of people are likely to have read the false review within the 12 months before the commencement of the proceeding. In particular:

(1)    the false review (posted on 12 December 2018) remained on the RateMDs website in the period from June 2020 (12 months before the commencement of the proceeding) to September 2021;

(2)    RateMDs is a website which is self-described as the “original and largest Doctor rating site since 2004 with over 40 million visits every year”, or over 100,000 visits per day; and

(3)    analytic data provided by RateMDs to Dr Colagrande for his account reveals that, for the period December 2020 to June 2021, his profile had page views ranging from about 70,000 to 180,000 per month.

Defamatory meaning

40    There is no dispute from the respondents that the false review carried both pleaded defamatory meanings that:

(1)    Dr Colagrande sexually assaulted his patient; and

(2)    Dr Colagrande had so conducted himself in sexually assaulting his patient he should not be practising medicine.

Dr Colagrande’s hurt feelings

41    The respondents submitted that, given s 34 of the Defamation Act 2005 (NSW) (“…the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded), allowance had to be made for the fact that Dr Colagrande was already extremely hurt and traumatised by the criminal proceedings against him, and the media reporting of those proceedings, which still remains online.

42    Insofar as hurt to the defamed person is concerned, this submission appears to be based on a dubious psychological proposition that it is necessarily the case that every person who has suffered one trauma must be less hurt and traumatised by any subsequent related trauma. I do not accept any such general proposition about the human condition unconnected to evidence in the particular case. Hurt and offence to the person defamed are to be assessed on the evidence, assessed in the ordinary course as to its cogency, and not on unfounded and generalised psychological assumptions.

43    There is no doubt that Dr Colagrande was and remains traumatised by the accusation, criminal proceedings, initial conviction, stress of the appeal process before his vindication by the quashing of the conviction and the entry of the nolle prosequi by the prosecution before any retrial, and the fact that stories about all of these events (particularly the accusation, criminal proceedings, and initial conviction) remain online for all to see.

44    The respondents submitted that Dr Colagrande’s evidence about the hurt and further trauma he suffered as a result of the false review should not be accepted. It was submitted that it “defies credulity to suggest that the publication of a single, four-line review on RateMDs was of just as much concern to the applicant, and caused him just as much trauma, as the experience of being charged with a serious crime that he did not commit and given a suspended custodial sentence on that charge, with all the associated (and continuing) media attention that came with it”. As a consequence, it was submitted that the Court would not make a significant allowance for hurt feelings in assessing damages.

45    Again, I disagree. Dr Colagrande’s evidence was clear and persuasive. He was seriously traumatised by all of the relevant events relating to his criminal conviction and its subsequent setting side and the entry of the nolle prosequi. His recovery from that trauma had been slow. He continues to suffer from those events. But the reading of the false review inflicted a profound new trauma, particularly because Dr Colagrande (in common with all reasonable readers) understood the false review to have been posted by the patient who had made the accusation against him. The false review was couched in terms indicating that it had been written by the patient, being the one person in the world other than Dr Colagrande who knew the truth of what had occurred, who was continuing to assert in December 2018 (after Dr Colagrande’s successful appeal and the entry of the nolle prosequi) that she had been sexually assaulted by Dr Colagrande. Having seen and heard Dr Colagrande give evidence I have no doubt that this caused him to again be profoundly traumatised. He gave evidence in these terms which I accept:

(1)    “…the RateMDs made me re-experience everything all over again”;

(2)    despite recovery being a “slow road” “…before I read the RateMDs post, I was doing a lot better. I was in a good mental state”, “I was in a much better mental state and coping much better”. While he continued to be upset by the criminal proceedings, he was now “doing a lot better from the criminal proceedings”, but was still now suffering from the false review;

(3)    “[t]he publication of the conviction is very different to this RateMDs”; and

(4)    “[a]nd having a review posted on your RateMDs page pales into insignificance in comparison to that; do you agree?---Incorrect. No.”

46    I also do not accept that Dr Colagrande’s evidence, such as the way he presented information obtained from RateMDs, was intended in any way to mislead. I accept Dr Colagrande was giving honest evidence, including that when he reviewed the RateMDs website the only negative review he saw about himself was the false review.

Harm to and vindication of Dr Colagrande’s reputation

47    I accept that, despite the setting aside of his conviction and the subsequent entry of the nolle prosequi, Dr Colagrande’s reputation has been negatively affected by the mere fact of his charge and conviction. But I also consider that I cannot infer that Dr Colagrande had a bad reputation requiring mitigation of the damages to be awarded to him on that account. This is because:

(1)    the respondents pleaded but then abandoned a plea of bad reputation in mitigation of damages;

(2)    while I can accept that in the minds of some people the mere fact of charge and conviction, despite subsequent successful appeal and entry of a nolle prosequi, will have damaged Dr Colagande’s reputation, I am unable to accept (particularly without any supporting evidence) that this involves a settled generally held view of the community: Faruqi v Latham [2018] FCA 1328 at [162];

(3)    to the contrary of (2), the fundamental principle of our law is that a person is innocent unless and until proven guilty, a necessary corollary of which is that a person whose conviction has been set aside and a nolle prosequi entered thereafter is to be treated as innocent. Accordingly, it would be wrong for another aspect of our law, that of defamation, to treat the person’s reputation as sullied and therefore less amenable to damage and unworthy of vindication to the same extent as might otherwise have been the case; and

(4)    even if the proposition in (3) does not hold good as a statement of principle in a case where a conviction has been set aside and a nolle prosequi entered, my acceptance that some people will still think less of Dr Colagrande does not mean that it is to be assumed that these people represent the community at large. Without evidence, it is equally possible to assume or infer that as many (if not more) people will adhere strongly to the notion that a person is innocent unless and until proven guilty as will adhere to the notion that there “is no smoke without fire”.

48    In the present case, where the plea of bad reputation was abandoned and no evidence of such was adduced apart from the charge and conviction subsequently set aside, I do not consider that the requirement in s 34 of the Defamation Act for there to be an appropriate and rational relationship between the harm sustained by Dr Colagrande and the amount of damages awarded can lead to the result for which the respondents contend – a reduction of the damages otherwise appropriate on the ground of an existing bad reputation or a reputation less amenable to damage and unworthy of vindication to the same extent as might otherwise have been the case.

49    I consider this answers the respondents’ submissions relating to the relevance of previous publications about Dr Colagrande’s charge and conviction to his reputation. The fact that the evidence indicates that Dr Colagrande’s successful appeal and the entry of the nolle prosequi did not receive as much publicity as his charge and conviction is immaterial. It was never suggested that Dr Colagrande’s successful appeal and the entry of the nolle prosequi did not receive any publicity. The proposition I do accept, which the submissions for Dr Colagrande never departed from in any event, is that Dr Colagrande cannot recover from the respondents for any hurt or harm done to him by the previous publications as previously published about his charge and conviction. The respondents are not liable for that hurt or harm: Hayson v The Age Company Pty Ltd (No 2) [2020] FCA 361 at [83] citing Cornwall v Rowan [2004] SASC 384; (2004) 90 SASR 269 at [794]. But the respondents are responsible for the hurt and harm done to Dr Colagrande by the false review posted on the RateMDs website, being the kind of website to which (I accept) a prospective patient or employer may well have recourse to ascertain other patients’ views of Dr Colagrande. If, as the evidence supports in this case, Dr Colagrande suffered profound re-traumatisation by reason of the false review, that is hurt and harm caused by the respondents. Dr Colagrande’s vulnerability to re-traumatisation is immaterial.

Assessment of damages

50    Dr Colagrande seeks damages, including aggravated damages, for hurt feelings, damage to reputation, and vindication of reputation, as well as damages for the costs of discovering the identity of the respondents as publishers of the false review.

51    I accept that the defamatory imputations carry a serious sting and stigma for any person, but particularly a doctor said to have breached a patient’s trust by subjecting the patient to a sexual assault in the course of a medical consultation. Accordingly, damage to Dr Colagrande’s professional and personal reputation must be real and is likely to be far more extensive than the direct evidence exposes. The need for vindication of reputation is also strong. As submitted for Dr Colagrande:

The circumstances of this case are extraordinary, involving entirely false allegations of the most serious nature made without any justification by a practicing (sic) medical practitioner, and his wife, against another practicing (sic) medical practitioner.

52    I further accept the submission for Dr Colagrande that:

The imputations that have been conveyed are among the gravest that can be alleged against a practicing (sic) medical practitioner. These are the type (sic) of allegations that will always raise questions and doubts. It is human nature to apply a cautionary approach to persons subject to such allegations both personally and professionally. Even where the False Review is not believed, the allegations will cause people to treat Dr Colagrande with caution into the foreseeable future - his reputation is stained by the allegations forever.

53    Given this, the principle that “[v]indication looks to the attitude of others to the [applicant]: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the [applicant’s] reputation” expressed in Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 61 is engaged.

54    I accept that Dr Colagrande was profoundly hurt and distressed, indeed re-traumatised, by the false review. As discussed, the fact that Dr Colagrande might have been more susceptible to serious hurt and trauma from the false review than someone else might have been due to his previous experiences does not undermine the extent of his hurt and trauma caused by the false review. “A person publishing defamatory imputations must take applicants as they find them. Accordingly, it is appropriate to have regard to the individual sensitivities of an applicant”: Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 at [446(c)].

55    I accept that this hurt and trauma was compounded by Dr Colagrande’s subsequent discovery that the false review was not posted by his former patient, intent on causing him further harm, but by another doctor unknown to him who Dr Colagrande rightly inferred wished to do him professional harm. In this regard, the state of mind of the respondents, which I consider to have been actuated by malicious intent towards Dr Colagrande, substantially exacerbated the harm suffered by Dr Colagrande as provided for in s 36 of the Defamation Act.

56    As Dr Colagrande said when he found out the respondents owned the relevant IP address from which the false review was made and that the first respondent was Dr Mitchell Kim, he felt “sick to the bone” and could not believe a fellow doctor would so such a thing. He became paranoid about other doctors seeking to destroy his reputation and did not know who to trust. He felt his medical fraternity was turning on him and was punishing him. He became detached from colleagues and avoided medical conferences. He felt that it “was destroying [his] mind space and…ability to turn to fellow doctors for support”, as “Dr Kim was [a] medical professional, a person with intellect and understanding of the destruction of what a post may do to [Dr Colagrande] personally”. His anxiety rose as he “feared others would read Dr Kim’s post and think it was in fact from the female who alleged sexual assault was trying to get back her vengeance on me”. His ability to focus was so affected he had to take extended time off work. This is an understandable reaction from a person in Dr Colagrande’s circumstances.

57    While the evidence supports an inference that reviews on the RateMDs website are generally anonymous, nothing indicates that such anonymity is necessary. Moreover, the uniquely malicious sting of the false review required anonymity. The natural and ordinary meaning of the false review is that the purported victim of the sexual assault, a person in the unique position to know the truth, was asserting that the sexual assault in fact occurred. This required anonymity. The false review could not have functioned as it must be inferred to have been intended by the respondents to function had the first and second respondents identified themselves as the authors of the post. In these circumstances, the fact of anonymity of the false review is an aggravating circumstance of the respondents’ conduct in posting the false review. I accept that “[t]hrough deception and underhandedness, the respondents took direct aim at the applicant’s personal and professional reputation and thus sought to destroy his character, his reputation, and his livelihood”. The circumstances expose improper and unjustifiable conduct of the respondents: Hockey at [446(g)].

58    I also reject the proposition that it should not be inferred that the respondents knew that the conviction of Dr Colagrande had been quashed. The very fact that the false review was couched in terms indicating that it had been posted by the purported victim of the sexual assault is evidence that the respondents knew that it was not open to them to post merely that Dr Colagrande had been previously convicted of sexual assault. This was the unique sting of the false review. The fact that Mr Russo was unable to find any evidence of the Court of Appeal’s decision when he searched online, and Dr Colagrande agreed that the appeal decision received comparatively little media attention, does not lead to any favourable inference for the respondents in this regard. Given that they did not give evidence when they could reasonably be expected to do so, the terms of the false review are sufficient to found an inference adverse to the respondents – that they knew Dr Colagrande’s conviction had been set aside and calculated the best way in which to cause Dr Colagrande the most possible harm by inducing readers to believe that the sexual assault had occurred.

59    I accept that the fact that the respondents did not remove the false review until September 2021 despite having been requested to do so in January 2021 was further improper and unjustifiable conduct on their part. I infer that the respondents, as the joint authors of the post, could have removed it at any time but did not do so as part of their intention to “bring to surface false matters… to an audience with the greatest invested interest in such knowledge”.

60    While I do not accept that the initial plea of bad reputation is an aggravating circumstance (because it involves some complexity of reasoning to determine its inevitable failure as discussed above), the fact that the respondents have chosen to continue to deny responsibility for publication in the face of overwhelming contrary evidence is another aggravating factor. The respondents have never acknowledged their responsibility for the false review or apologised to Dr Colagrande for their egregious and dishonest conduct which are relevant factors: Hockey at [446(e)]. Their inferred motives – for the first respondent to damage a commercial competitor and the second respondent to assist the first respondent in achieving that object – are also aggravating factors because, as provided for in s 36 of the Defamation Act, they exacerbated the harm suffered by Dr Colagrande.

61    The respondents pleaded that a matter in mitigation of damages was that Dr Colagrande’s websites advertising his services involved women “wearing lingerie and high-heeled shoes”, “posing in an overtly sexualised manner”, and that he used “overtly sexual imagery in the depiction of women’s bodies, including women who are purported to be ‘Actual Patients’ of [Dr Colagrande], in order to advertise his services as a cosmetic surgeon, in a way which exceeds what is necessary or appropriate to objectively depict the results of surgeries performed by [Dr Colagrande]”, which was “unprofessional conduct for a medical practitioner”. This pleading was not in good faith and was improper and unjustifiable. It is not apparent how these matters could have been relevant to the plea in mitigation. They could not be said to be relevant background context to the publication of the false review. The plea was maintained until March 2022 but then abandoned. This too is an aggravating circumstance.

62    It is common ground that the Defamation Amendment Act 2020 (NSW) amendments in relation to the damages that came into force after 1 July 2021 do not apply. Further, that under s 35 of the Defamation Act the maximum amount of damages for non-economic loss is $432,500.

63    Further, there was no dispute as to the principle summarised by Lee J in Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; (2021) 387 ALR 123 at [236] that:

… if an award of aggravated damages is appropriate in this case, the cap is inapplicable and an order for damages for non-economic loss that exceeds the cap in respect of both pure compensatory damages and aggravated compensatory damages can be made: Bauer Media [Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; (2018) 56 VR 674] (at 732 [249]); Rush [Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432] (at 526–7 [459]–[466]). But it is of significance, as the Full Court pointed out, that it is always necessary to bear in mind that s 34 of the Act continues to apply and provides an “ever-present guide to ensure remedies are fair and effective in the context of achieving the objects of the Act with the aim of ensuring consistency of awards in defamation proceedings across jurisdictions and to correct any imbalance with awards of damages for personal injuries”: Bauer Media (at 731 [244]).

64    I accept that the circumstances of this case justify an award of aggravated damages so that the maximum amount of damages for non-economic loss of $432,500 does not apply by operation of s 35(2) of the Defamation Act (as it was before the 1 July 2021 amendments). Section 35(2) provided that a court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages

65    The submissions for Dr Colagrande provided the following summary of cases said to be comparable to some extent (albeit noting that some cases pre-date the Defamation Act and others involve different maximum caps on damages for non-economic loss):

(a) Thunder Studios Inc (California) v Kazal (No 12) [2022] FCA 110 where an Australian businessman was awarded $1,350,000 (in total) for general and aggravated damages including interest in respect of two ongoing internet publications on a website that conveyed imputations that he had breached fiduciary duties, that he so lacked in integrity to pay a journalist to publish invented lies and that he attempted to pervert the course of justice.

(b) Tribe v Simmons [2021] FCA 1164 per Lee J – where the brother of a famous basketball player was awarded $550,000 in general damages including aggravated damages in an undefended hearing for serious allegations of sexual assault and molestation of his half sister (a minor), and causing her mental and permanent physical injury, in three “tweets” on Twitter, where the actual extent of publication was unknown.

(c) Nettle v Cruse [2021] FCA 935 per Wigney J – where a plastic surgeon was awarded $450,000 in general damages including aggravated damages in an undefended hearing for internet publications alleging fraud and medical malpractice.

(d) Webster v Brewer (No 3) [2020] FCA 1343 per Gleeson J – where a politician who was also a doctor, her doctor husband and a charity for women were defamed in seven Facebook written and video posts alleging they were participants in a secretive criminal network involved in the sexual abuse of children. The first video was viewed 2400 times before it was removed from the platform by Facebook and there was evidence that each post was interacted with hundreds of times. There were findings that the allegations were believed by a small but significant segment of the local community harming the reputation of the applicants and that may have contributed to the decline in women being referred to the charity. There was however a significant finding that the publications were not reasoned or plausible and reasonable people would dismiss them as deranged and lacking in credibility:

i. First applicant, the politician and also a medical practitioner was awarded $350,000 in general damages including aggravated damages;

ii. Second applicant, a medical practitioner, only the target of three of the publications was awarded $200,000 in general damages including aggravated damages; and

iii. The charity was awarded $300,000 in general damages.

(e) Tavakoli v Imisides (No 4) [2019] NSWSC 717 per Rothman J – where a plastic surgeon was awarded $530,000 in general damages including aggravated damages plus interest in an undefended hearing for allegations of incompetence and cruelty against him on a Google review.

(f) Al Muderis v Duncan (No 3) [2017] NSWSC 726 per Rothman J – where a surgeon was awarded $381,000 (the then cap) in general damages and an additional $99,000 in aggravated damages in an undefended hearing for serious allegations of medical malpractice, cruelty and fraud on five internet publications complained of including videos on various sites including a website constructed using a similar URL to the surgeon’s website and continuing internet publication constituting harassment. The extent of publication on the evidence was unknown.

(g) Crampton v Nugawela (1996) 41 NSWLR 176 – where (prior to the Defamation Act 2005) a doctor published a letter accusing another doctor of deliberately lying to those concerned with a medical conference, the jury awarding $600,000 in damages as an undifferentiated sum of compensation for lost opportunity to earn income and for distress, damage to reputation and vindication of reputation. The plaintiff was accused of lying in a professional context, and it was important that the accusations did not come merely from another doctor, but by him as acting for the second defendant, the Royal College. The damages award was unanimously upheld on appeal.

66    I am of the same view as Lee J in Tribe v Simmons (No 2) [2021] FCA 1164 at [48] that there “is no useful purpose in me going through the individual cases and identifying where there are similarities and where there are differences” as each case is as fact-specific as human ingenuity permits.

67    One aspect of Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2020] QCA 221; (2020) 6 QR 64 is also relevant. Jackson J (with whom Morrison and Mullins JJA agreed) referred at [35] and [38] to s 6(a) of the Law Reform Act 1995 (Qld) (dealing with proceedings against joint and several tortfeasors) and XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448 at 456, which confirmed that the equivalent provision to s 6(a), s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), abolished the rule that for a joint tort there was a single wrong and a single cause of action. His Honour then said at [39] that the consequence must be that “where a single judgment or separate judgments in the same amount otherwise would be made against several concurrent tortfeasors for damages in respect of indivisible harm, separate awards must be made for any aggravated damages where the aggravating conduct is not jointly engaged in by all defendants and the same amount of aggravated damages is not assessed against all of them”.

68    In the present case, that principle is inapplicable. Although I infer that the first respondent’s motive was to harm his commercial competitor and the second respondent’s motive was to assist the first respondent, that assistance is properly characterised as assistance to the first respondent to achieve his malicious motive. As a result, the first respondent’s motive, I infer, was shared by the second respondent. Otherwise, I infer that at all times in their relevant conduct, including the defence of this proceeding, the respondents have acted jointly. They have the same legal representation and filed a single defence drawing no distinction between them. In these circumstances, the aggravating conduct is joint conduct of the respondents.

69    Taking this with s 8 of the Defamation Act (a “person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter”), there should be a single award of damages for non-economic loss for which the respondents are jointly and severally liable.

70    Given all of the circumstances referred to above I am satisfied that a substantial award of damages is required (including aggravated damages) on account of Dr Colagrande’s hurt feelings, damage to his reputation, the need for vindication of his reputation, and the circumstances of aggravation. I award $420,000 to Dr Colagrande on account of his non-economic loss.

71    Dr Colagrande also sought special damages in the sum of $31,511.29 on account of the money he had to spend to ascertain the underlying facts which lead inexorably to the inference that the respondents posted the false review. There is no doubt that the false review caused Dr Colagrande to incur these costs. Dr Colagrande should be awarded $31,511.29 to compensate him for these losses.

Injunctions

72    Dr Colagrande seeks injunctions restraining the respondents from publishing the false review or any matter to the same effect.

73    I consider that the circumstances support an inference that there is a real risk of the respondents publishing the false review or matter to the same effect unless restrained: Rush v Nationwide News Pty Limited (No 9) [2019] FCA 1383. In particular:

(1)    in posting the false review anonymously, the respondents ensured that their identities were not disclosed;

(2)    the respondents posted the false review despite never having any direct interaction with Dr Colagrande and for the most base of motives, which was to attempt to destroy a commercial competitor of the first respondent once and for all;

(3)    the evidence that the respondents were responsible for the false review and its ultimate removal from the RateMDs website is overwhelming, but they have never acknowledged their responsibility for these events, let alone expressed any remorse or otherwise given any indication that they accept the seriousness of the wrong they have done to Dr Colagrande; and

(4)    the evidence is that the first respondent continues to practice as a cosmetic surgeon on the Gold Coast and Dr Colagrande continues to practice out of his clinic on the Gold Coast, albeit that he now focuses on health and wellbeing and not cosmetic surgery.

Conclusions

74    Orders for damages and special damages will be made, as well as orders for costs and interest. Permanent injunctions will be granted restraining the respondents from publishing the false review or any matter to the same effect.

Associate:

Dated:    21 April 2022