Dods v McDonald (No 1)

In the case of Dods v McDonald (No 1), the plaintiff, Mr Dods, sought to sue the defendant, Mr McDonald, for defamation arising from statements published on an internet website. The dispute came before the court on an application by the defendant for a judgment of no case to answer. The central issue before the court was whether the website pages had been published within the limitation period and whether the statements had been communicated to and understood by at least one person other than the plaintiff. Additionally, the court had to consider whether evidence that the subject of the alleged defamation was a matter of substantial public controversy, and that searches on a standard search engine listed the defendant’s website very highly, could support an inference of publication to unidentified persons. There was also evidence of publication to one person outside the limitation period, but who had previously read the statements inside that period.

The court considered whether this constituted one publication or two, and whether, by maintaining the website, the defendant engaged in a continuing act of publication to all persons, including previous readers. The court examined the relevant provisions of the Defamation Act 2005 (Vic) and the Limitation of Actions Act 1958 (Vic). The court concluded that the evidence presented, if accepted by the jury, could support an inference of publication to unidentified persons, and that the defendant’s maintenance of the website constituted a continuing act of publication. Consequently, the court dismissed the defendant’s application for a judgment of no case to answer.

The court further found that the evidence of publication to the one person outside the limitation period, who had previously read the statements inside that period, could be considered as a separate publication. The court determined that the issues raised were appropriate for determination by a jury and that the application for a judgment of no case to answer should be dismissed. The case was therefore remitted for trial by jury.