A single anonymous review, four lines long, sat on a doctor rating site for close to three years. In Colagrande v Kim [2022] FCA 409 the Federal Court assessed what it had done to the person it described, and awarded $420,000 for non-economic loss including aggravated damages, together with $31,511.29 in special damages, permanent injunctions, costs and interest.
The reasons of Jagot J repay reading four years on, and not because of the figure. They are one of the clearest Australian illustrations of how you prove who was behind an anonymous account, why the anonymity itself can make the damages worse, and what it costs to find out. The Court applied the Defamation Act 2005 (NSW) and the reasons contain no discussion of choice of law; the Queensland provisions mentioned below have been checked against the current reprint, which is why the reasoning is said to read across.
Disclosure: Fraser Lawyers acted for the applicant, Dr Colagrande, in this proceeding. The account of the case below is drawn from the published reasons and from the costs judgment, both linked at the end.
The review, and proving who posted it
Dr Colagrande was convicted of indecent assault of a patient in February 2017 on a charge he had defended. The Queensland Court of Appeal quashed that conviction on 5 June 2018 and the prosecution entered a nolle prosequi two days later.
On 12 December 2018 an anonymous account posted a review on RateMDs reading, in full, “After what he did to me, I can’t believe he’s still practicing. Just read the article.”, the spelling as posted, then a link to a news report of the conviction, and rating him 1 out of 5 on each of the four criteria. The wording matters to everything that followed: it reads as the account of the complainant herself, written after the appeal had succeeded.
The platform refused to remove it. Reaching the poster took a subpoena obtained through Californian lawyers to extract the IP address, then a Federal Court order requiring Telstra to identify the account holders. They turned out to be another Gold Coast cosmetic surgeon and his wife.
Neither respondent gave evidence, and their defence denied publication. The unchallenged cyber security evidence went only so far: it traced the post to a Samsung mobile device used over a Telstra account the respondents held ([13]). What closed the gap were their own answers to interrogatories, establishing that only the two of them could use that account and that the first respondent’s sole phone was a password-protected Samsung Galaxy Note whose password he alone knew ([15]). Against that, the silence did real work: with no explanation for evidence it would have been reasonable to expect, the Court said it could and did more readily draw the inferences the rest supported. Both were found to have acted in concert.
Anonymity as an aggravating circumstance
The most transferable finding is at [57]. Reviews on the site were generally anonymous, but her Honour held that nothing indicated anonymity was necessary, and that here it was doing something specific:
the uniquely malicious sting of the false review required anonymity … In these circumstances, the fact of anonymity of the false review is an aggravating circumstance of the respondents’ conduct in posting the false review.
The review only worked because readers would take it as coming from the one person other than Dr Colagrande who knew what had happened. Identify the authors as a competitor and his wife and the sting disappears. Concealment was not incidental to the wrong, it was the mechanism of it.
Three further matters aggravated the award: the review stayed up until September 2021 although removal had been sought that January; responsibility was denied throughout and never acknowledged or apologised for; and a plea in mitigation attacking the applicant’s advertising imagery was maintained until March 2022 and then abandoned, which the Court found was not made in good faith.
Malice is not a separate head. Under s 36 of the Defamation Act 2005 (NSW), which governed this proceeding, a defendant’s state of mind is disregarded except so far as it affects the harm sustained, and here the discovery that the poster was a fellow practitioner deepened the harm. Queensland’s s 36 is in the same terms.
Why a quashed conviction did not reduce the damages
The respondents argued that a man already damaged by a publicised conviction, and already traumatised by the prosecution, had less reputation to lose and less capacity to be hurt. Both limbs failed. On hurt, the Court declined to accept as a general proposition that a person who has suffered one trauma must necessarily be less affected by a later related one, calling it a dubious psychological proposition unconnected to evidence in the particular case. A publisher takes the person defamed as it finds them.
On reputation, her Honour gave four reasons: the bad reputation plea had been abandoned; there was no evidence of a community-wide view discounting a quashed conviction; a person whose conviction has been set aside is to be treated as innocent, so defamation law should not treat their reputation as less worthy of vindication; and, as an alternative not depending on that third reason, there was no basis to assume those who still thought less of him represented the community at large. The third is the quotable one, but it is one of four and expressly supplemented, not the sole basis of the conclusion.
The cap, and why there was one award and not two
At the time, the maximum damages amount for non-economic loss was $432,500, and under s 35(2) as it then stood an award of aggravated damages disapplied that cap entirely. Her Honour held the cap did not apply, then assessed $420,000, which landed just under it. The disapplication did not, on these facts, produce an award above the cap. Queensland’s s 35 has since been amended so that an award of aggravated damages no longer disapplies the cap and is made separately from it: s 35(2A) and (2B). Whether an amendment reaches particular matter turns on transitional provisions that are outside the scope of this note.
The more interesting question was whether there had to be two awards rather than one. In Nine Network Australia Pty Ltd v Wagner [2020] QCA 221, a Queensland decision turning on the joint tortfeasor provision in s 6(a) of the Law Reform Act 1995 (Qld), Jackson J held that separate awards of aggravated damages must be made where the aggravating conduct is not jointly engaged in by all defendants and the same amount is not assessed against all of them.
Jagot J held that principle inapplicable here, because the aggravating conduct was joint: the second respondent’s motive was to assist the first in achieving his, they had acted jointly throughout including in defending the proceeding, they shared representation, and they filed a single defence drawing no distinction between them. Taken with s 8, which gives a person a single cause of action for a publication however many imputations it carries, that produced one award of damages for non-economic loss for which both respondents are jointly and severally liable, which is to say the applicant may enforce the whole of it against either.
| Relief | Amount or order | Basis |
|---|---|---|
| Non-economic loss, including aggravated damages | $420,000, a single award, joint and several | Hurt, harm to reputation, vindication and the circumstances of aggravation |
| Special damages | $31,511.29 | The cost of establishing who posted the review |
| Injunctions | Permanent, against both respondents | A real risk of republication inferred |
| Costs | Indemnity basis, on the later judgment | Unreasonable failure to make a settlement offer |
Costs, and the offer that was never made
The costs judgment, Colagrande v Kim (No 2) [2022] FCA 659, is short and worth practitioners’ attention. Jagot J held she would not have ordered indemnity costs under general law principles, because the unmeritorious denial of publication had already been reflected in the special damages and in the aggravation component of the award.
Indemnity costs followed anyway, under s 40(2)(a). Where a plaintiff has succeeded, costs are to be awarded to that plaintiff, and the court is satisfied the defendant unreasonably failed to make or to agree to a settlement offer, the provision requires an indemnity costs order unless the interests of justice require otherwise. Her Honour read that as two alternatives, so a defendant may reasonably refuse an unreasonable offer and still be exposed: refusing is not the same as having made a reasonable offer of its own. The respondents’ three offers were held not to be reasonable ones, in substance because each would have covered little more than costs already incurred and left nothing for vindication. Queensland’s s 40 is in the same terms.
Published 16 August 2026.
Where this leaves a Queensland business or professional
Reputational damage online is not always the work of a disgruntled customer. Here it was a competitor, writing in the voice of a complainant, on a platform prospective patients actually consulted. The Court accepted that people researching a practitioner may weigh patient reviews more heavily than news coverage. That the earlier reporting had done its own damage was not in doubt; what mattered was that the respondents were answerable only for the distinct and additional harm their review caused.
Two practical points follow. Preserve the material early, because the trail that identified the respondents depended on records the platform and the carrier still held. And take s 40 seriously from both sides: it turns an unreasonable failure to engage into a costs consequence the general law would not deliver.
The full reasons are at AustLII, with the costs judgment alongside, and the current Queensland Act at legislation.qld.gov.au.
Related reading
- SHRL Ventures Pty Ltd v Pedro-X Pty Ltd: repudiation, pressured exits and oppression
- How Fraser Lawyers helps with commercial disputes
- Contact Fraser Lawyers
Need advice? Defamation and online reputation matters move on short timeframes, and the evidence that identifies an anonymous publisher does not stay available indefinitely. Contact Fraser Lawyers to understand your rights and where you stand, with no obligation. |
This article is general information only and is not legal advice. Queensland law and the figures referred to can change, and every situation turns on its own facts. Contact Fraser Lawyers for advice specific to your circumstances.
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