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Dods v McDonald (No 1)

Dods v McDonald (No 1)

Case [2016] VSC 200 6 May 2016

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2013 01637

COLIN DODS	Plaintiff
v
MICHAEL MCDONALD	Defendant

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 5, 6, 9, 10 & 11 November 2015
DATE OF JUDGMENT:	6 May 2016
CASE MAY BE CITED AS:	Dods v McDonald (No 1)
MEDIUM NEUTRAL CITATION:	[2016] VSC 200

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DEFAMATION – Internet website – trial by jury – defendant’s application of no case to answer – whether website pages had been published inside limitation period – whether statements in pages had been communicated to and comprehended by at least one person other than plaintiff – inferring publication in Internet cases – evidence that subject of alleged defamation was matter of substantial public controversy and that searches on standard search engine listed defendant’s website very highly – whether evidence, if accepted by jury, could properly support inference of publication to unidentified persons – other evidence of publication to one person (other than plaintiff) inside limitation period – person had previously read statements outside that period – whether one publication or two – whether, by maintaining website, defendant engaged in continuing act of publication to all persons, including previous readers – Defamation Act 2005 (Vic) s 7(2) – Limitation of Actions Act 1958 (Vic) s 5(1AAA).

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr D Bracken	Tony Hargreaves & Partners
For the defendant	Mr T Greenway	Rigby Cooke Lawyers

HIS HONOUR:

Introduction

By a writ issued on 3 April 2013, Colin Dods sought damages against Michael McDonald for damages for alleged defamatory statements on an Internet website. The trial was conducted before a jury of six. At the close of the plaintiff’s case, the defendant submitted that he had no case to answer because there was no evidence that he had published the statements within the applicable limitation period. I ruled against that submission. These are my reasons.

The plaintiff is a sergeant of police in Victoria. The defendant is a barrister in Queensland. The alleged defamations consisted of highly critical statements made in June and July 2012 in the Internet website justice4tylercassidyjust15.com (now withdrawn) that was administered by the defendant. The statements concerned the plaintiff’s involvement in the death of Tyler Cassidy (aged 15 years) in tragic circumstances in Northcote in December 2008. He was one of four police officers present when Mr Cassidy was shot by one of them. The incident generated substantial public controversy and was the subject of a coronial inquiry. Among the statements complained of were statements that the plaintiff had ‘executed’ Tyler and that Tyler was ‘gunned down as if he was a dangerous mongrel dog’. A report of the coroner published in November 2011 effectively exonerated the plaintiff of personal responsibility. The statements were not removed from the website until mid-July 2012.

The elements of the tort of defamation are publication and defamatory matter.[1] The tort is established when the plaintiff proves that the defendant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dods v McDonald (No 1)

Details

AGLC: Dods v McDonald (No 1) [2016] VSC 200
Case: [2016] VSC 200
Decision Date: 6 May 2016

CaseChat Overview and Summary

In the case of Dods v McDonald (No 1), the plaintiff, Dods, brought a defamation claim against the defendant, McDonald, for statements allegedly defamatory of Dods that were published on McDonald's website. The matter was heard in the County Court of Victoria. The dispute centred on whether the statements on the website had been published within the limitation period, and whether they had been communicated to and understood by at least one person other than Dods. The court was also required to determine if the evidence could support an inference of publication to unidentified persons and whether maintaining the website constituted a continuing act of publication.

The court had to consider the nature of publication on the internet, including whether the evidence could support an inference of publication to unidentified persons. The court noted that the subject of the alleged defamation was a matter of substantial public controversy, and searches on a standard search engine listed McDonald's website very highly. The court examined whether this evidence, if accepted by the jury, could properly support the inference of publication to unidentified persons. Furthermore, the court considered whether there was evidence of publication to one person, who had previously read the statements outside the limitation period, and if maintaining the website constituted a continuing act of publication to all persons, including previous readers.

The court found that the evidence, if accepted by the jury, could properly support the inference of publication to unidentified persons. It concluded that there was sufficient evidence to establish that at least one person other than Dods had read and comprehended the statements on the website within the limitation period. The court also held that maintaining the website constituted a continuing act of publication, thereby encompassing previous readers within the scope of the publication. Consequently, the defendant's application for a no case submission was dismissed.

The court did not make any final orders in this part of the case, as the matter was proceeding to a trial by jury. The decision focused on the sufficiency of the evidence to establish publication within the limitation period and the nature of publication on the internet.

Orders