Colagrande v Kim [2022] FCA 409 (on AUSTLII).
Dr Colagrande was convicted of indecent assault of a patient, a charge to which he had pleaded not guilty. The Queensland Court of Appeal quashed that conviction. The prosecution then abandoned the charge. Subsequently a review was posted on RateMD. The reasons for judgment in this matter indicate that Dr Colagrande initially assumed the former patient who had falsely accused him of sexual assault had made the post. As then explained at [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”.
Neither respondent gave evidence in the proceeding. The respondents filed a defence in which they denied publishing the false review, however expert evidence was given to the effect that the review was posted using a Samsung mobile device over a Telstra account for which the respondents were the account holders. The Court held at [21]:
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 …. 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.
There was no dispute that the false review carried pleaded defamatory meanings. Compensatory and aggravated damages were awarded. Permanent injunctions were also ordered.
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