Colagrande v Kim

Case [2022] FCA 409

FEDERAL COURT OF AUSTRALIA

Colagrande v Kim [2022] FCA 409  

File number(s): NSD 587 of 2021
Judgment of: JAGOT J
Date of judgment: 21 April 2022
Catchwords:

DEFAMATION — whether respondents published defamatory materials — joint tortfeasors — hurt feelings — vindication of reputation — permanent injunction prohibiting respondents from further publication of defamatory content — assessment of damages — damages for non-economic loss — aggravated damages — special damages
Legislation:

Defamation Act 2005 (NSW)

Defamation Amendment Act 2020 (NSW)

Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

Law Reform Act 1995 (Qld)
Cases cited:

Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44

Cornwall v Rowan [2004] SASC 384; (2004) 90 SASR 269

Faruqi v Latham [2018] FCA 1328

Hayson v The Age Company Pty Ltd (No 2) [2020] FCA 361

Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652

Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2020] QCA 221; (2020) 6 QR 64

Rush v Nationwide News Pty Limited (No 9) [2019] FCA 1383

Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; (2021) 387 ALR 123

Tribe v Simmons (No 2) [2021] FCA 1164

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 74
Date of hearing: 9-10 March 2022
Counsel for the Applicant: Ms S Chrysanthou SC with Mr H Elachkar
Solicitor for the Applicant: Fraser Lawyers
Counsel for the Respondents: Mr N Olson
Solicitor for the Respondents: Company Giles

ORDERS

NSD 587 of 2021
BETWEEN:

CESIDIO COLAGRANDE

Applicant
AND:

MIN SIK KIM

First Respondent

ANNA MIN

Second Respondent

ORDER MADE BY:

JAGOT J

DATE OF ORDER:

21 APRIL 2022

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…

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AGLC
Colagrande v Kim [2022] FCA 409
Case
[2022] FCA 409
Decision Date

CaseChat Overview and Summary

The case of Colagrande v Kim involved Dr Colagrande, an Australian trained doctor who specialised in cosmetic surgery, and the respondents, Mr Min Sik Kim and Mrs Anna Min, who were the account holders of a Telstra account used to post a defamatory review about Dr Colagrande on the RateMDs website. The defamatory review falsely accused Dr Colagrande of sexual assault and resulted in significant emotional distress and harm to his professional reputation. The respondents denied publishing the review and did not provide evidence in their defence. The court had to decide several legal issues, including whether the respondents published the defamatory material, the nature of the damages to be awarded, and the appropriateness of a permanent injunction against the respondents.

The court found that the respondents had indeed published the defamatory review with overwhelming evidence pointing to their responsibility. The court found that the respondents had a motive to damage Dr Colagrande's reputation due to their direct competition in the same field of cosmetic surgery on the Gold Coast. The court also found that there was a real risk of the respondents publishing the review again unless restrained. Consequently, the court awarded Dr Colagrande general damages of $420,000 for non-economic loss, special damages of $31,511.29, and costs and interest. The court also granted a permanent injunction against the respondents from publishing the defamatory review or any matter to the same effect, as well as from making imputations about Dr Colagrande that he sexually assaulted his patient or that he should not be practising medicine.

The court's decision was based on the significant harm caused to Dr Colagrande's reputation and emotional wellbeing by the defamatory review, as well as the respondents' refusal to acknowledge their responsibility for the publication and their lack of remorse. The court emphasised the need to protect Dr Colagrande's reputation and prevent further harm from the respondents. The court also noted the importance of holding the respondents accountable for their actions and ensuring that they do not repeat their defamatory conduct in the future.

Orders

Orders of the court

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.

Background

Background to the litigation

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 The primary facts fall within a narrow compass. 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. 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. 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. 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. >The review also gave Dr Colagrande 1 out of 5 for each of staff, punctuality, helpfulness, and knowledge. 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. 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”.

Evidence

Evidence Before The Court

The respondents filed a defence in which they denied publishing the false review. Neither respondent gave evidence in the proceeding. Further evidence and factual findingsWho posted the false review? 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. 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. 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. 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”. 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;

Decision

Reasons for decision

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 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.

Ratio Decidendi

Legal Principle Established

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